Labour Disputes
Texto da decisão
REF FPSD-7601
Decision of the
Dispute Resolution Chamber
passed on 25 January 2023
regarding an employment-related dispute concerning
the player Imanol Irriberri
BY:
Dana MOHAMED AL-NOAIMI (Qatar)
CLAIMANT:
Imanol Irriberri, Argentina
Represented by Gerardo Luis Acosta
RESPONDENT:
Boavista FC, Portugal
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REF FPSD-7601
I. Facts of the case
1.
On 21 August 2020, the Argentinian player Imanol Irriberri (hereinafter: the player or the
Claimant) and the Portuguese club, Boavista FC (hereinafter: the club or the Respondent)
concluded a settlement agreement following a previous dispute between them (hereinafter:
the agreement).
2.
According to the agreement, the Respondent undertook to pay the Claimant EUR 25,000 in 10
equal instalments of EUR 2,500 each, payable every 5th day of each month between
September 2020 and June 2021.
3.
On 26 September 2022, the Claimant lodged a claim against the Respondent in front of FIFA
and requested payment of EUR 12,500 regarding the instalments due between February and
June 2021, plus 5% interest p.a. over each instalment.
4.
In its reply, the club argued that it was severely impacted by the COVID-19 pandemic, as
demonstrated by an internal financial report. As such, the club is stated that it is undergoing
an administration/bankruptcy proceeding after the majority of its creditors approved a
recuperation plan. However, no evidence in support of these allegations was presented by
the Respondent.
5.
Given these specific circumstances, the Respondent deems that its obligations towards the
Claimant should be extinguished in accordance with Portuguese Law. Consequently, the club
requested that it be not condemned to pay any amounts.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
6.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 26 September 2022
and submitted for decision on 25 January 2023. Taking into account the wording of art. 34 of
the October 2022 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.
7.
Subsequently, the Single Judge 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 par. 1 lit. b) of the Regulations
on the Status and Transfer of Players (October 2022 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 an Argentinian player and a Portuguese club.
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8.
Subsequently, Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition), and
considering that the present claim was lodged on 26 September 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
9.
The Single Judge 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 Single Judge stressed the
wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
10. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, the
Single Judge emphasised that in the following considerations she will refer only to the facts,
arguments and documentary evidence, which she considered pertinent for the assessment
of the matter at hand.
i. Main legal discussion and considerations
11. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club for outstanding
remuneration only.
12. According to the player, the club failed to remit EUR 12,500 per the agreement. The
Respondent for its part argued that it was undergoing a bankruptcy proceeding and faced
severe economic impact due to the COVID-19 pandemic.
13. On this note, the Single Judge underlined that that FIFA issued a set of guidelines, the COVID19 Guidelines, which aim at providing appropriate guidance and recommendations to
member associations and their stakeholders, to both mitigate the consequences of
disruptions caused by COVID-19 and ensure that any response is harmonised in the common
interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as
FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
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14. Said guidelines – as per the explicit wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA
COVID-19 Guidelines – are only applicable to “unilateral variations to existing employment
agreements”. Therefore, except where a termination of a contract occurred following a
unilateral variation made as a result of COVID-19 (in which case the validity of the variation
must first be assessed under the guidelines), said guidelines do not apply to assess unilateral
terminations of existing employment agreements. The Single Judge further noted that for the
assessment of disputes that are presented before the FIFA judicial bodies concerning the
unilateral termination of a contract, the FIFA Regulations as well as the established
jurisprudence of the DRC shall apply.
15. As to the concept of a situation of force majeure, we also noted that, based on the contents
of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ, FIFA did not declare that the
COVID-19 outbreak was a force majeure situation in any specific country or territory, or that
any specific employment or transfer agreement was impacted by the concept of force
majeure. In other words, in any given dispute, it is for a party invoking force majeure to
establish the existence of said event under the applicable law/rules as well as the
consequences that derive in connection thereto. The analysis of whether a situation of force
majeure existed has to be considered on a case-by-case basis, taking into account all the
relevant circumstances.
16. Following these general observations, the Single Judge confirmed that in the case at stake, no
unilateral variation was made to the agreement and the latter shall be analysed in accordance
with the Regulations and the regular jurisprudence of FIFA in this respect, and therefore
Portuguese Law is of no relevance in this respect.
17. As to the allegation of force majeure, the Single Judge observed that there is no evidence on
file other than the internal report as to the financial problems of the club. As a result, she
confirmed that that no situation of force majeure could be established, and that the club had
not provided any valid justification for the non-payment of the amounts that were outstanding.
By the same token, the Single Judge observed that no evidence of the bankruptcy proceedings
has been filed.
18. As such, she confirmed that the Respondent failed to meet its burden of proof, and its position
was accordingly rejected.
19. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided to award the player all the amounts sought with the interest claimed,
as follows:
a. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 February
2021 until the date of effective payment;
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b. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 March 2021
until the date of effective payment;
c. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 April 2021
until the date of effective payment;
d. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 May 2021
until the date of effective payment; and
e. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 June 2021
until the date of effective payment.
ii. Compliance with monetary decisions
20. Finally, taking into account the applicable Regulations, the Single Judge 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.
21. In this regard, the Single Judge 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.
22. Therefore, bearing in mind the above, the Single Judge 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. 24 par. 2, 4, and 7 of the Regulations.
23. The Respondent shall make full payment (including all applicable interest) to the bank account
provided by the Claimant in the Bank Account Registration Form, which is attached to the
present decision.
24. The Single Judge 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
25. The Single Judge 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, she decided that no procedural costs were to be imposed on the
parties.
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26. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings. Lastly, she concluded the deliberations by rejecting any other
requests for relief made by any of the parties.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Imanol Irriberri, is accepted.
2.
The Respondent, Boavista FC, has to pay to the Claimant, the following amount(s):
a. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 February
2021 until the date of effective payment;
b. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 March 2021
until the date of effective payment;
c. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 April 2021
until the date of effective payment;
d. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 May 2021
until the date of effective payment;
e. EUR 2,500 as outstanding remuneration plus 5% interest per annum as from 6 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, 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.
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).
CONTACT INFORMATION
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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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