Dispute Resolution Chamber
Texto da decisão
REF FPSD-783
Decision of the
Dispute Resolution Chamber
passed on 11 May 2021
regarding an employment-related dispute concerning the player Aide Brown Ideye
BY:
Jon Newman (USA), member
CLAIMANT:
Aide Brown Ideye, Nigeria
Represented by Mr Ismael Lambin
RESPONDENT:
Aris FC, Greece
Represented by Mr Konstantinos Zemberis
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REF FPSD-783
I.
FACTS OF THE CASE
1.
On an unspecified date, the Claimant and the Respondent signed an employment
agreement (hereinafter: ‘the contract’), valid between 18 July 2019 and 30 June 2020,
based on which the Claimant was entitled to receive the following amounts:
-
EUR 95,000 on 30 October 2019;
EUR 100,000 on 30 January 2020;
EUR 45,000 on 30 March 2020;
EUR 100,000 on 30 May 2020.
2.
On 29 June 2020, the Claimant and the Respondent signed an amendment to the contract,
based on which the contract was amended and the parties agreed that the Claimant would
only be entitled to an amount of EUR 197,307
3.
On 10 November 2020, the parties concluded a settlement agreement, based on which the
parties agreed that, as per art. 2 of the settlement agreement, an amount of EUR 122,307
would be paid to the Claimant by the Respondent as follows:
-
4.
EUR 25,000 ‘before or upon the signature of the present agreement’;
EUR 25,000 on 10 December 2020;
EUR 25,000 on 10 January 2021;
EUR 25,000 on 10 February 2021;
EUR 22,307 on 10 March 2021.
What is more, in art. 4 of the settlement agreement, the parties agreed upon the following
clause:
‘[…] It is however expressly agreed that if the first payment is not timely made pursuant to
clause 2, the present settlement agreement shall be null and void and shall be considered
as non-existent and the player shall be entitled to continue with his claim before the FIFA
DRC.
In case of delay of payment of any of the instalments (apart from the first one), stipulated
in clause 2, partly or in full, for a period of more than five (5) working days, the club shall
be liable to pay, for each instalment that have delayed more than five working days, a
penalty of EUR 8,000 (eight thousand) in addition to the unpaid instalment or the unpaid
part of such instalment’.
II.
PROCEEDINGS BEFORE FIFA
5.
On 2 March 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a.
6.
On 2 March 2021, the Claimant lodged a claim against the Respondent before FIFA,
claiming the outstanding amount of EUR 55,307 as per the settlement agreement,
consisting of:
-
7.
The claim of the Claimant
EUR 25,000 as overdue instalment due on 10 February 2021;
EUR 22,307 as overdue instalment due on 10 March 2021;
EUR 8,000 as penalty for the non(-timely) payment of the February-instalment.
In his claim, the Claimant explains that the Respondent paid the first, second and third
instalment, but failed to timely pay him the fourth (February) and fifth (March) instalments,
as a result of which a penalty of EUR 8,000 fell due.
b.
Position of the Respondent
8.
In its reply to the Claimant’s claim, the Respondent confirmed that it delayed the payment
of the fourth instalment for more than 5 days, due to cash flow problems as a result of the
COVID-19 pandemic.
9.
What is more, the club confirmed that on 31 March 2021, it paid to the Claimant the
outstanding amounts of EUR 25,000 (fourth instalment) and EUR 22,307 (fifth instalment).
10.
As to the claimed penalty, the Respondent asks for the rejection of said part of the claim,
as it is ‘abusive and contrary to the law’, as it is ‘leading to an unacceptable interest of
100% p.a. since according to the relevant clause, Aris FC would pay for few days delay of
payment an amount that corresponds to an unacceptable and illegal interest on the delayed
amount and therefore, the said clause constitutes an invalid clause which provides for an
excessive and unacceptable penalty’.
11.
Subsidiary, the Respondent asks the DRC reduce the penalty to ‘¼ of the amount at
maximum’.
c.
12.
In reply to the alleged payments made by the Respondent, the Claimant confirmed that it
received the following amounts:
-
13.
Final position of the Claimant
EUR 25,000 on 31 March 2021;
EUR 22,307 on 31 March 2021.
What is more, the Claimant insisted on the payment of the penalty of EUR 8,000 for the
delay in the February payment.
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REF FPSD-783
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC)
JUDGE
a.
Competence and applicable legal framework
14.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to DRC
Judge) 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 18 February 2021 and
submitted for decision on 2 March 2021. Taking into account the wording of art. 21 of the
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
15.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 and par. 2 in combination with art. 22 lit. a) and b)
of the Regulations on the Status and Transfer of Players (edition February 2021), the DRC
Judge is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Nigerian player and a Greek club.
16.
Subsequently, the DRC judge 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 Player (edition February 2021), and
considering that the present claim was lodged on 2 March 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
17.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
18.
In this respect, the DDRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
19.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
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documentation on file. However, the DRC judge emphasised that in the following
considerations he 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
20.
The foregoing having been established, the DRC judge moved to the substance of the
matter, and took note of the fact that – given the fact that the outstanding amount of EUR
47,307 was paid - the parties only strongly dispute the fact whether or not the penalty
clause on the basis of which an amount of EUR 8,000 was due to the Claimant, could be
fully upheld.
21.
In this context, the DRC judge acknowledged that it its task was to determine whether or
not the penalty in the amount of EUR 8,000 was to be considered disproportionate and
excessive and whether said amount could be awarded in full to the Claimant.
22.
In this respect, the DRC judge was of the opinion that penalty clauses may be freely entered
into by the contractual parties and may be considered acceptable, in the event that the
pertinent written clause meets certain criteria such as proportionality and reasonableness.
23.
In view of the foregoing, and taken into account that the parties appears to agree that the
penalty clause as such is in principle applicable, the DRC judge decided to analyse whether
the full application of the penalty clause, for a total amount of EUR 8,000, was to be
considered disproportionate and excessive in the current circumstances.
24.
In this regard, the DRC judge highlighted that in order to determine as to whether a penalty
clause is to be considered acceptable, the specific circumstances of the relevant case
brought before it shall also be taken into consideration.
25.
In the specific case at hand, the members of the Chamber deemed that the penalty clause
of EUR 8,000 in case of the late payment of the total amount of EUR 25,000 (fourth
instalment) represented 32% of said instalment (and only 17% of the total remaining
amount of EUR 47,307 to be paid under the settlement agreement). Such percentages
could, also in view of the DRC’s well-established jurisprudence, not be considered
disproportionate and/or excessive in the case at hand.
26.
Consequently, the DRC judge concluded that in accordance with the general principle of
pacta sunt servanda, the Respondent is liable to pay to the Claimant the amount of EUR
8,000, corresponding to the amount mentioned in the contractually agreed penalty clause,
in light of the Respondent’s failure to pay the full amount provided by the settlement
agreement in a timely manner.
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ii. Consequences
27.
Having stated the above, the DRC judge turned his attention to the question of the
consequences of the applicability of the penalty clause.
28.
In this respect, the DRC judge concluded that, taken into account that the relevant amounts
as per the settlement agreement paid, however late, the penalty in the amount of EUR
8,000 can be awarded to the Claimant.
29.
What is more, the DRC judge wished to point out that no interest on such penalty amount
shall be awarded, as this would constitute a double sanction.
iii. Compliance with monetary decisions
30.
Finally, taking into account the consideration under number 28. above, the Chamber
referred to par. 1 lit. and 2 of art. 24bis 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.
31.
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.
32.
Therefore, bearing in mind the above, the DRC decided that the Respondent must pay the
full amount due (including all applicable interest) to the Claimant within 45 days of
notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 24bis par. 2, 4, and 7 of the Regulations.
33.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
34.
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. 24bis par. 8
of the Regulations.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Aide Brown Ideye, is partially accepted.
2.
The Respondent, Aris FC, has to pay to the Claimant, the following amount:
- EUR 8,000 as penalty fee.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full payment
(including all applicable interest) is not paid 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 three entire and
consecutive registration periods.
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 paid by the end of
the of the three entire and consecutive registration periods.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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