Labour Disputes
Texto da decisão
REF FPSD-3843
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Pedro Pablo
Hernandez
COMPOSITION:
HENDEL, Clifford J. (USA & France), Deputy Chairperson
BOEYKENS, Stijn (Belgium), Member
DOS SANTOS MEGALE, Andre (Brazil), Member
CLAIMANT:
Pedro Pablo Hernandez, Chile
Represented by Carlezzo Advogados
RESPONDENT:
Club Atlético Independiente, Argentina
Represented by Ariel N. Reck
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I.
Facts of the case
1.
On 2 July 2018, the Chilean player, Mr Pedro Pablo Hernandez (hereinafter: the player or the
Claimant), and the Argentinean club, Club Atlético Independiente (hereinafter: the club or
the Respondent) concluded a supplementary agreement to the labour contract previously
concluded between them, valid as from the date of signature until 30 June 2021 (“Acuerdo
Complementario e Integrante del Contrato de Trabajo“; hereinafter: the supplementary
agreement).
2.
In accordance with the supplementary agreement, the club undertook to pay the player
monthly salaries and monthly “sporting trajectory bonuses” for the seasons 2018/2019,
2019/2020 and 2020/2021.
3.
In particular, for the season 2020/2021, the parties stipulated that the following amounts
would be due:
a. Monthly salary: from 1 July 2020 to 30 June 2021, a total of ARS 11,360,000, equivalent
to USD 400,000, payable as from August 2020 in 13 instalments, corresponding to 12
monthly salaries plus an additional annual salary of ARS 873,846; and
b. Sporting trajectory bonuses: from 1 July 2020 to 30 June 2021, a total of ARS 11,360,000,
equivalent to USD 400,000, payable in 12 equal and consecutive instalments of ARS
946,667.
4.
In addition, clause 5 of the supplementary agreement stipulated that each and every of the
sums indicated in the supplementary agreement as monthly salary and sporting trajectory
bonus were agreed upon in accordance with the exchange rate of the USD dollar as sold by
the Argentinean National Bank (i.e. USD 1 = ARS 28.40) on the date of the signature of the
supplementary agreement. Furthermore, the parties expressly established that the amounts
stipulated in the contract would be paid in ARS in accordance with the selling rate of the
dollar determined by the Argentinean National Bank of the day before the payment falls due.
Therefore, all payments established in the supplementary agreement would be accordingly
adjusted the day before the paydate. In case the exchange rate varied more than 30% in
relation to the one stipulated in the contract, the parties committed themselves to renegotiate
the supplementary agreement.
5.
Also on 2 July 2018, the parties signed a private agreement (“Acuerdo Privado”; hereinafter:
the private agreement), by means of which the club undertook to pay the player the total
amount of USD 900,000, during the 3 seasons of the term of the agreement (2018/2019,
2019/2020 and 2020/2021).
6.
On 24 July 2020, the parties concluded a debt recognition agreement (“Reconocimiento de
Deuda y Pago”; hereinafter: the settlement agreement), by virtue of which they renegotiated
the dates and conditions of payment of past debts arising from the private agreement.
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7.
Pursuant to clause 3 of the settlement agreement, the club acknowledged a debt towards
the player in the total amount of USD 750,000, payable in 18 monthly and equal instalments
of USD 41,666.66, the first of which payable on 10 August 2020 and the last one on 10
January 2022.
8.
Furthermore, clause 7 of the settlement agreement established that, in case the club failed to
pay any of the instalments on the agreed dates, all instalments would become automatically
due.
9.
On 31 August 2021, the player put the club in default of payment of the amounts of USD
500,000 as per the settlement agreement and USD 262,297 as sporting trajectory bonuses
and monthly salaries from the supplementary agreement. The player requested that all
amounts be paid as soon as possible.
II. Proceedings before FIFA
10. On 29 September 2021, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
11. In his claim, the player explained that after the conclusion of the supplementary agreement,
for the first two seasons the payments were correctly made by the club. However, as of March
2021 the club failed to pay the amounts due to the player. Moreover, the player recalled that
clause 5 of the supplementary agreement stipulated that in case of variation in the exchange
rate between the Argentinean Peso (ARS) and the US Dollar (USD), the parties would
renegotiate the amounts, which never occurred.
12. In this respect, the player claimed that the club only paid him USD 150,000 out of the
supplementary agreement and therefore the parties decided to conclude the settlement
agreement on 24 July 2020. The player however alleged that the club only paid him the first
six instalments of the settlement agreement, amounting to USD 250,000, failing to pay the
subsequent instalments, which automatically fell due as per the acceleration clause. Thus, the
player deems to be still entitled to receive USD 500,000 related to the settlement agreement.
13. As to the supplementary agreement, the player explained that he only requests amounts
related to the 2020/2021 season.
14. In this context, he claims that, from the monthly salaries, the club failed to pay him the salaries
of April, May and June 2021, totalizing ARS 2,621,538. From the sporting trajectory bonuses,
the club failed to pay the bonuses of March, April, May and June 2021, totalizing ARS
3,786,668.
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15. Therefore, the player claims that the total amount due for the season 2020/2021 from the
supplementary agreement corresponds to ARS 6,408,206. As per the player, however, this
amount is not final as it should be adjusted, in order to reflect the variation in the exchange
rate between ARS and USD, in accordance with clause 5 of the supplementary agreement.
Since the parties did not renegotiate the terms of the agreement, the player deems that the
amounts should be granted in USD or reflect in ARS the amount previously stipulated in USD,
according to the current exchange rate, in order to avoid that the player suffers any damage.
16. Based on the foregoing, the player, after amending his claim, makes the following request
for relief:
a) Determine the Respondent to pay to the Claimant the amount in debt in connection
with the Fourth Clause of the Supplementary Agreement, that is, $ 6,408,206 (six
million four hundred and eight thousand two hundred and six Argentinean Pesos), plus
5% interest per year since the date in which the payments became due, as detailed
below:
a. Salaries
i. - $ 873,846 (eight hundred and seventy-three thousand eight hundred
and forty six Argentinean Pesos) due on 1 April 2021;
ii. - $ 873,846 (eight hundred and seventy-three thousand eight hundred
and forty six Argentinean Pesos) due on 1 May 2021;
iii. - $ 873,846 (eight hundred and seventy-three thousand eight hundred
and forty six Argentinean Pesos) due on 1 June 2021.
b. Bonuses
i. - $ 946,667 (nine hundred and forty-six thousand six hundred and sixtyseven Argentinean Pesos) due on 1 March 2021;
ii. - $ 946,667 (nine hundred and forty-six thousand six hundred and sixtyseven Argentinean Pesos) due on 1 April 2021;
iii. - $ 946,667 (nine hundred and forty-six thousand six hundred and sixtyseven Argentinean Pesos) due on 1 May 2021;
iv. - $ 946,667 (nine hundred and forty-six thousand six hundred and sixtyseven Argentinean Pesos) due on 1 June 2021.
b) Determine the Respondent to pay to the Claimant the amount in debt in connection
with the Third Clause of the Debt Recognition Agreement, that is of USD 500,000 (five
hundred thousand US Dollars), plus 5% interest per year since the date in which the
total amount became due, that is, one day after the deadline for the payment of the
seventh installment (in accordance with the Seventh Clause of the Debt Recognition
Agreement), which occurred on 11 February 2021, as detailed below:
a. - 7 th installment amounting to USD 41,666,66 (forty-one thousand six hundred
and sixty-six US Dollars plus sixty-six cents) due on 10 February 2021;
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b. - 8 th installment amounting to USD 41,666,66 (forty-one thousand six hundred
and sixty-six US Dollars plus sixty-six cents) due on 10 March 2021;
c. - 9 th installment amounting to USD 41,666,66 (forty-one thousand six hundred
and sixty-six US Dollars plus sixty-six cents) due on 10 April 2021;
d. - 10th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 May 2021;
e. - 11th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 June 2021;
f. - 12th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 July 2021;
g. - 13th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 August 2021;
h. - 14th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 September 2021;
i. - 15th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 October 2021;
j. - 16th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 November 2021;
k. - 17th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 December 2021;
l. - 18th installment amounting to USD 41,666,66 (forty-one thousand six
hundred and sixty-six US Dollars plus sixty-six cents) due on 10 January 2022;
In case of failure to pay the overdue amounts, impose a transfer ban based on article 24bis
of the FIFA’s Regulations on the Status and Transfer of Players, forbidding the club from
registering any new players, either nationally or internationally, for up to three entire and
consecutive registration periods.
b. Position of the club
17. In spite of being invited to do so, the club did not submit its reply to the player’s claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
18. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 29 September 2021 and submitted for
decision on 27 January 2022. Taking into account the wording of art. 34 of the October 2021
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
19. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. b) of the
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Regulations on the Status and Transfer of Players (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Chilean player and
an Argentinean club.
20. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 29 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
21. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13 par. 5 of
the Procedural Rules, according to which a party claiming a right on the basis of an alleged
fact shall carry the respective burden of proof. Likewise, the Chamber stressed the wording
of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider evidence not filed
by the parties, including without limitation the evidence generated by or within the Transfer
Matching System (TMS).
c. Merits of the dispute
22. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber emphasised that in the following considerations it will refer only to the facts,
arguments and documentary evidence, which it considered pertinent for the assessment of
the matter at hand.
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the case at stake refers to outstanding payments out of the
supplementary agreement for the season 2020/2021 and of the settlement agreement for
previous debts.
24. In this context, the DRC observed that the club, for its part, failed to present its response to
the claim of the player, in spite of having been invited to do so. In this way, the DRC
considered that the club renounced its right to defence and thus accepted the allegations of
the player.
25. Furthermore, as a consequence of the aforementioned consideration, the members of the
Chamber concurred that in accordance with art. 21 of the Procedural Rules, they shall take a
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decision upon the basis of the documents on file, in other words, upon the statements and
documents presented by the player.
26. With the above in mind, the Chamber first of all turned its attention to the player’s
argumentation as to the settlement agreement. In doing so, the DRC considered that his
allegations were contractually based, supported by documentary evidence and remained
uncontested by the club. Therefore, by referring to the general legal principle of pacta sunt
servanda, the DRC decided that the acceleration clause included in the contract (i.e. clause 7
of the settlement agreement) was triggered, hence the player should be awarded the
outstanding amount of USD 500,000.
27. In addition, taking into consideration the player’s request, the members of the Chamber
decided to award the player 5% interest p.a. on the amount requested as from the due date
(i.e. 11 February 2021), until the date of effective payment.
28. In continuation, the DRC moved to the analysis of the outstanding amounts as per the
supplementary agreement. To this extent, the Chamber once again considered that the
amounts were contractually based and should be granted to the player as claimed.
Nevertheless, after considering the wording of clause 5 of said agreement, the Chamber
decided that the amounts therein established should be awarded in ARS, taking into
consideration the exchange rate of the day before each of the due dates.
29. The abovementioned conclusion was reached in accordance with the Chamber’s
jurisprudence in similar cases before the Football Tribunal.
30. To this end and for the sake of calculation, the Chamber calculated that the player would be
entitled to a monthly salary of approximately USD 30,817.50 (i.e. USD 400,000 minus ARS
873,846 – corresponding to USD 30,190 on 2 July 2018 – divided per 12 months). Moreover,
by following the same approach, the Chamber considered that the player would be entitled
to a monthly sporting trajectory bonus of approximately USD 33,333.
31. Based on the abovementioned considerations, the DRC concurred that the club should be, in
principle, liable to pay the following amounts and interest:
a. Salaries (total of ARS 8,737,070), as follows:
i. ARS 2,877,320 on 29 April 2021, plus 5% p.a. as from 1 May 2021;
ii. ARS 2,913,790 on 30 May 2021, plus 5% p.a. as from 1 June 2021; and
iii. ARS 2,945,960 on 29 June 2021, plus 5% p.a. as from 1 July 2021.
b. Sporting trajectory bonuses (total of ARS 12,512,090), as follows:
i. ARS 3,061,850 on 30 March 2021, plus 5% p.a. as from 1 April 2021;
ii. ARS 3,112,180 on 29 April 2021, plus 5% p.a. as from 1 May 2021;
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iii. ARS 3,151,630 on 30 May 2021, plus 5% p.a. as from 1 June 2021; and
iv. ARS 3,186,430 on 29 June 2021, plus 5% p.a. as from 1 July 2021.
32. Notwithstanding the above, the DRC observed that the player in his amended claim converted
the amounts to ARS and limited his request in connection to the supplementary agreement
to ARS 6,408,206.
33. Therefore, guided by the general legal principle of ne ultra petita, the members of the
Chamber unanimously decided to award the player the total requested, exactly as claimed.
34. It followed from the above, in the Chambers’ opinion, that the player’s claim should be
entirely accepted.
ii. Compliance with monetary decisions
35. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
body shall also rule on the consequences deriving from the failure of the concerned party to
pay the relevant amounts of outstanding remuneration and/or compensation in due time.
36. In this regard, the DRC highlighted that, against clubs, the consequence of the failure to pay
the relevant amounts in due time shall consist of a ban from registering any new players,
either nationally or internationally, up until the due amounts are paid. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
37. Therefore, bearing in mind the above, the DRC decided that the club must pay the full amount
due (including all applicable interest) to the player within 45 days of notification of the
decision, failing which, at the request of the player, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and consecutive
registration periods shall become immediately effective on the club in accordance with art.
24 par. 2, 4, and 7 of the Regulations.
38. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
39. The DRC recalled that the above-mentioned ban will be lifted immediately and prior to its
complete serving upon payment of the due amounts, in accordance with art. 24 par. 8 of the
Regulations.
d. Costs
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40. The Chamber referred to art. 25 par. 1 of the Procedural Rules, according to which
“Procedures are free of charge where at least one of the parties is a player, coach, football
agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
41. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
42. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pedro Pablo Hernandez, is accepted.
2.
The Respondent, Club Atlético Independiente, has to pay to the Claimant, the following
amount(s):
- USD 500,000 as outstanding remuneration plus 5% interest p.a. as from 1 February 2021
until the date of effective payment;
- ARS 946,667 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment;
- ARS 1,820,513 as outstanding remuneration plus 5% interest p.a. as from 1 April 2021 until
the date of effective payment;
- ARS 1,820,513 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until
the date of effective payment; and
- ARS 1,820,513 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until
the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid. The maximum duration of the ban shall
be of up to three entire and consecutive registration periods.
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2.
The present matter shall be submitted, upon request, to the FIFA Disciplinary Committee
in the event that full payment (including all applicable interest) is still not made by the
end of the three entire and consecutive registration periods.
5.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a
party within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 17 of the Procedural Rules).
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