DRC Overdue Payables
Texto da decisão
REF. FPSD-8335
Decision of the
Dispute Resolution Chamber
passed on 20 April 2023
regarding an employment-related dispute concerning
the player Kevin Lenini
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Angela Collins (Australia), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Kevin Lenini, Cape Verde Islands
Represented by Mr Pedro Macieirinha
RESPONDENT:
GD Chaves, Portugal
Represented by Mr Mario Santos Paiva
pg. 2
REF. FPSD-8335
I. Facts of the case
1. On 20 May 2021, the Cape Verdean player Kevin Lenini (hereinafter: the Claimant) and the
Portuguese club GD Chaves (hereinafter: the Respondent) concluded an employment contract
(hereinafter the Contract) valid as from 1 July 2021 until 30 June 2024.
2. In accordance with art. 1 of the Contract, the Respondent and the Claimant (hereinafter: the
Parties) agreed as follows:
“By the present contract, the parties declare in a free, express and irrevocable manner that CHAVES
SAD is the legitimate owner of all (100%) of the federation/sporting rights of the player, whereby,
equally, CHAVES SAD is the legitimate owner of 80% of the economic rights of the player, and, in
turn, the player is the owner of 20% of the net value of his economic rights. So that no doubts
remain, the player declares in an express, free and irrevocable manner that he will only have the
right to receive a percentage of the values that CHAVES SAD will be entitled to, in case the player
is transferred definitely and onerously, and in case of an onerous transfer, the 20% of the player
will be calculated after deducting any and all amounts that CHAVES SAD may have to pay as a
solidarity mechanism (as defined by the Portuguese Federation and/or FIFA), all amounts related
to intermediation, expenses with the hiring and transfer of the player, as well as expenses and
costs incurred and/or supported by Chaves SAD during the performance of the Sports Employment
Contract.”
3. Furthermore, the Parties agreed as follows:
“Any and all disputes arising from the present sports employment contract shall be submitted to
the jurisdiction of the Sports Arbitration Court (TAD) based in Lisbon, applying the provisions
regarding voluntary arbitration in labour matters as established in article 7 paragraph 1 of Law
74//2013 of 6 September.”
4. On 7 September 2022, the Respondent and the Claimant signed an “Agreement for
Revocation of a Sports Employment Contract” (hereinafter: the Revocation Agreement), in
accordance with which the parties undertook to mutually terminate the Contract.
5. In accordance with the Third Clause of the Revocation Agreement, the parties agreed as
follows:
“The Player declares and acknowledges that he has nothing more to receive or to claim from
Chaves SAD, whether in whatever form and irrespective or their nature, including, but not limited
to, salaries, bonuses, damages, settlements and/or any other sum. (…) The [Player] has nothing to
demand or to claim from Chaves SAD, under any title whatsoever, giving the competent and
complete discharge.”
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REF. FPSD-8335
6. Furthermore, in accordance with the Eighth Clause of the Revocation Agreement, the parties
agreed as follows:
“For the interpretation of this Revocation Agreement or resolution of any dispute and/or emerging
issues resulting from its application or execution, the parties elect, with express waiver of any
other, however privileged it may be, the Court of Arbitration for Sport based in Lisbon, applying
the provisions regarding voluntary arbitration in labour matters as established in article 7
paragraph 1 of Law no. 74/2013, of 6 September.”
7. On the same day, the Respondent and the Russian club FC Krasnodar (hereinafter:
Krasnodar) signed a transfer agreement (hereinafter: the Transfer Agreement) in accordance
with which the transfer of the Claimant to Krasnodar was agreed upon.
8. In accordance with the Transfer Agreement, the Respondent and Krasnodar agreed as
follows:
“GD Chaves warrants and commits that it holds 100% of the federative and economic rights on
the Player, is the sole and exclusive owner of the right to claim a transfer fee for the release and
transfer of the player in the meaning of statutory requirements of FIFA (in particular FIFA RSTP)
and that upon registration of the player on a permanent basis Krasnodar shall become the sole
and exclusive owner of all interests and rights in connection herewith.”
9. Furthermore, in accordance with the Transfer Agreement, Krasnodar undertook to pay to
the Respondent a total transfer fee of EUR 1,200,000 net, payable in two equal instalments
of EUR 600,000 net, each due on 30 September 2022 and 20 January 2023 respectively.
10. Lastly, the Transfer Agreement stated that it was made “with the approval of the player, Kevin
Lenini.”
11. On 10 November 2022, the Claimant put the Respondent in default of payment, requesting
payment of EUR 120,000 net, corresponding to 20% of the first instalment of the transfer fee
of EUR 600,000 under the Transfer Agreement. The Claimant granted the Respondent a
deadline of 10 days to remedy the alleged breach.
12. On 14 November 2022, the Respondent replied to the Claimant, outlining that it considered
the amount not to be due, since the Claimant revoked his right to any amounts under the
Contract in the Revocation Agreement.
pg. 4
REF. FPSD-8335
II. Proceedings before FIFA
1.
On 23 November 2022, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a. Position of the Claimant
2.
According to the Claimant, he was entitled, by way of the art. 1 of the Contract, to claim a
share of 20% of the fee of his transfer, due to the fact that he held 20% of his own economic
rights.
3.
The Claimant stated that the first instalment of the fee became due and that, as a result,
20% of the principal amount of EUR 600,000 net, i.e. EUR 120,000 net, was payable by the
Respondent.
4.
The Claimant argued that, even though he signed the Revocation Agreement the amount
was due, as the latter Agreement only stated that the Respondent had no further
obligations under the Contract with regards to salaries and bonuses.
5.
The Claimant, therefore, requested EUR 120,000 net as outstanding amount, plus interest
of 5% p.a. as from the due date until the date of effective payment.
6.
Lastly, the Claimant pointed out that, despite there being a jurisdiction clause in the
Contract in favour of the Sports Arbitration Court of Lisbon, the claim should be heard
before the Football Tribunal, because the Claimant does not have the financial means to
submit a claim there, and since there is an international dimension, the Football Tribunal
is more suitable as a forum.
b. Position of the Respondent
7.
In its reply, the Respondent argued that FIFA has no jurisdiction to hear the present claim,
as the Contract contained a jurisdiction clause which was explicitly in favour of the Sports
Arbitration Court of Lisbon, which is an independent arbitral tribunal established under
Portuguese public law.
8.
Furthermore, the Respondent argued that the claim should be rejected, in any event, as
the Claimant revoked his right to claim the requested amount by virtue of the Revocation
Agreement.
9.
In particular, the Respondent argued that said Agreement stated that the Claimant
acknowledges not having any outstanding amounts, and that he has “nothing more to
demand or claim, under any title whatsoever, regardless of its nature, including but not
limited to (…) agreements and/or any other amount”. Said clause is, according to the
pg. 5
REF. FPSD-8335
Respondent, so clearly a waiver that no further deliberation should be necessary to reject
the present claim (cf. in claris non fit interpretatio).
10. Moreover, the Respondent argued, the Claimant signed the Transfer Agreement on every
page, including the “preamble”, in which it was stated that the Respondent held 100% of
the federative and economic rights of the Claimant, thus making the latter the “sole and
exclusive owner of the right to claim a transfer fee for the release and transfer of the
Player”, further adding to the notion that the Claimant waived his right to claim any amount
arising out of the Contract, and by extension the Transfer Agreement.
11. Therefore, the Respondent requested for the claim to be rejected.
c. Additional comments as to jurisdiction
12. The FIFA General Secretariat invited, upon request of the Dispute Resolution Chamber, the
Parties to provide additional comments as to the jurisdiction of FIFA / the Portuguese
Sports Arbitration Tribunal over the present dispute.
13. The Claimant stressed that he does not have sufficient financial means to bring a claim
before the Sports Arbitration Tribunal, as said procedure could amount to costs allegedly
exceeding EUR 11,000, compared to a claim before the Football Tribunal, which bears no
procedural costs in matters involving players. Such cost may be itemised as such:
-
EUR 3,000 arbitration fees;
EUR 6,000 as remuneration for the arbitrator;
EUR 300 for administrative charges;
EUR 2,139 for VAT.
14. Furthermore, the Claimant emphasised that the dispute possesses an international
dimension which makes the Football Tribunal more suitable as a forum, as opposed to the
TAD, which is based in Portugal and largely deals with disputes located there.
15. Lastly, the Claimant purported that TAD would not be competent to deal with the dispute
in any event, as he no longer lives in Portugal, but in Russia, and that TAD is strictly limited
to dealing with disputes that are based in Portugal.
16. Despite having been invited to do so, the Respondent provided no further arguments or
documentation.
pg. 6
REF. FPSD-8335
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 23 November 2022 and
submitted for decision on 20 April 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.
18. 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
Regulations on the Status and Transfer of Players (March 2023 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 player from the
Cape Verde Islands and a club from Portugal.
19. The Chamber further noted that the Respondent contested the competence of FIFA to deal
with the present dispute, in light of art. 1 of the Contract. The Respondent argued that the
clause clearly confers exclusive jurisdiction to the Sports Arbitration Court of Lisbon (TAD).
20. In this respect, the Chamber revisited the wording of such provision, which stated as
follows:
“Any and all disputes arising from the present sports employment contract shall be submitted
to the jurisdiction of the Sports Arbitration Court (TAD) based in Lisbon, applying the provisions
regarding voluntary arbitration in labour matters as established in article 7 paragraph 1 of Law
74//2013 of 6 September.”
21. On the other hand, the Chamber noted that the Claimant, who insisted on the jurisdiction
of FIFA, acknowledged that the clause above was indeed applicable and exclusive, however,
argued that, since there was an international dimension, and the Claimant did not have the
economic facilities to pursue the claim before the local court, FIFA should, instead, hear the
claim.
22. The Chamber lastly recalled that, in addition to these initial submissions, the FIFA General
Secretariat, upon request of the DRC, invited the parties to submit further comments as to
the jurisdiction. Whereas the Claimant reiterated most of his previous arguments, the
Respondent provided no additional comments.
pg. 7
REF. FPSD-8335
23. Taking into account all the above, the Dispute Resolution Chamber emphasised that in
accordance with art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players,
FIFA is, in principle, competent to hear an employment-related dispute between a club and
a player of an international dimension. Nevertheless, the parties may explicitly opt in
writing for such dispute to be decided by an independent arbitration tribunal that has been
established at national level within the framework of the association and/or a collective
bargaining agreement. Any such arbitration clause must be included either directly in the
contract or in a collective bargaining agreement applicable on the parties. The independent
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs.
24. In this respect, the Chamber noted that the Respondent failed to provide any documentary
evidence which could prove that the TAD meets the requirements of providing fair
proceedings and equal representation, as established inter alia in art. 22 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players and FIFA Circular no. 1010. On account
of the above, and referring to the principle of burden of proof contained in art. 13 par. 5 of
the Procedural Rules, the Chamber established that the Respondent’s objection towards
the competence of FIFA to deal with the present matter must be rejected, and FIFA is
competent, on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present
matter as to the substance.
25. The foregoing having been established, 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
(March 2023 edition), and considering that the present claim was lodged on 23 November
2022, the October 2022 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
26. 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
27. 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
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REF. FPSD-8335
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
28. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of
outstanding amounts arising out of the Contract. In this respect, the Claimant requests
payment of the total sum of EUR 120,000, corresponding to 20% of the transfer fee which
the Respondent received as a result of selling the Claimant to Russian club FC Krasnodar.
The fact that the amount remained unpaid was not disputed.
29. The Chamber thus acknowledged that its task was to determine whether, based on the
terms of the Contract and the Transfer Agreement, and by virtue of his purported
ownership of economic rights, the Claimant was entitled to receive a share of the transfer
fee obtained by the Respondent from FC Krasnodar.
30. On one hand, the Chamber recalled that the Claimant argued that the Contract which he
signed clearly stipulated that he shall retain the 20% net value of his own economic rights
– more specifically, the Contract states, he has the “irrevocable” right to receive 20% of the
amount which the Respondent shall receive in exchange for his subsequent definitive
transfer. Given that the Respondent received EUR 600,000 (1 st instalment of transfer fee),
the Claimant argued that he shall receive of said amount EUR 120,000 net, corresponding
to 20% thereof.
31. The Chamber equally observed that the Respondent, on the other hand, argued that the
Claimant has waived his right to receive any amounts from the former arising out of the
Contract, as per the Revocation Agreement. In particular, the Respondent argued that said
Agreement stated that the Claimant acknowledges not having any outstanding amounts,
and that he has “nothing more to demand or claim, under any title whatsoever, regardless of
its nature, including but not limited to (…) agreements and/or any other amount”. Said clause
is, according to the Respondent, clearly a waiver, to the extent that no further deliberation
should be necessary to reject the present claim (cf. in claris non fit interpretatio). Moreover,
the Chamber noted that the Respondent pointed to the fact that the Claimant signed the
Transfer Agreement on every page, including the “preamble”, in which it was stated that
the Respondent held 100% of the federative and economic rights of the Claimant, thus
making the latter the “sole and exclusive owner of the right to claim a transfer fee for the release
and transfer of the Player”, further adding to the notion that the Claimant waived his right
to claim any amount arising out of the Contract, and by extension the Transfer Agreement.
32. First of all, the Chamber rejected the line of argument that the principle of in claris non fit
interpretatio should apply in the present case, as the provision in question was, in its
estimation, neither clear nor unequivocal in the present context.
pg. 9
REF. FPSD-8335
33. Thereafter, the Chamber went on to consider the alleged ownership of the Claimant’s
economic rights, and the impact thereof on the entitlement to receive a part of the transfer
fee paid by Krasnodar.
34. In respect of the Transfer Agreement, the Chamber firstly concluded that the statement,
that the Respondent holds 100% of the Claimant’s sporting and economic rights, is
erroneous. In establishing this, it referred to art. 1 of the Contract, whereby it was clearly
stipulated that the Respondent retained 100% of the Claimant’s sporting rights and 80% of
the economic rights, with the Claimant in turn retaining 20% of his economic rights.
35. The Chamber wished to point out that, neither the fact that the Transfer Agreement was
signed and acknowledged by the Claimant bore any impact on this, nor the signature of
the Revocation Agreement, as the wording of each of these legal instruments was not
sufficiently clear and unequivocal, and provided no consideration to overturn the
Claimant’s ownership of 20% of his economic rights.
36. Moreover, the Chamber stressed that the same provision specifies that the Claimant is the
irrevocable holder of such economic rights, which reinforced the notion that a separate,
unequivocal and explicit agreement renouncing such share of his economic rights would
be required, and that a general mutual termination agreement and the acknowledgement/
consent to a transfer involving the player is insufficient.
37. Lastly, the Chamber referred to the general legal principle of nemo dat quod non habet, and
that the 20% share of the Claimant’s economic rights which the Claimant was exclusively
entitled to, as opposed to the Respondent, was unlawfully claimed by the latter, therefore
giving rise to a right to claim for reimbursement for the Claimant.
38. As such, and in accordance with art. 13 par. 5 of the Procedural Rules, according to which
the Chamber established the absence of sufficient evidence submitted by the Respondent
to establish that the Claimant agreed to grant the Respondent the remaining 20% of his
economic rights, the Chamber found that the Claimant was still the owner thereof at the
time of the Transfer Agreement’s conclusion.
39. Based on the above, the Claimant was entitled to receive a percentage of the transfer fee
obtained by the Respondent by Krasnodar on the occasion of the Claimant’s transfer to the
latter.
40. The Chamber further recalled that it remained uncontested that the Respondent retained
100% of the abovementioned transfer fee, despite the Claimant having put the latter in
default and granted a 10-day deadline to remit the due amount.
41. Thus, and in accordance with the general legal principle of pacta sunt servanda, the
Claimant is entitled to receive an outstanding amount of EUR 120,000 from the
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REF. FPSD-8335
Respondent, corresponding to 20% of the instalment of EUR 600,000 received by the
Respondent from Krasnodar.
42. Lastly, the Claimant shall receive annual interest of 5% as from 1 October 2022 until the
date of effective payment.
ii. Application of art. 12bis of the Regulations
43. In continuation, the Chamber referred to art. 12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than 30 days
without a prima facie contractual basis may be sanctioned in accordance with art. 12bis
par. 4 of the Regulations.
44. To this end, the Chamber confirmed that the Claimant put the Respondent in default of
payment of the amounts sought, which had fallen due more than 30 days before, and
granted the latter a 10-day deadline to cure such breach of contract.
45. Accordingly, the Chamber confirmed that the Respondent had delayed a due payment
without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations was met in the case at hand.
46. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. On account of the above and bearing
in mind that this is the second offense (FPSD-4546, notified on 5 April 2022) by the
Respondent within the last two years, the Chamber decided to impose a reprimand on the
club in accordance with art. 12bis par. 4 lit. b) of the Regulations.
47. In this connection, the Chamber highlighted that a repeated offence will be considered as
an aggravating circumstance and lead to a more severe penalty in accordance with
art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
48. 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.
49. 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.
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REF. FPSD-8335
50. 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. 24 par. 2, 4, and 7 of the Regulations.
51. 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.
52. 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
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8335
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Kevin Lenini.
2.
The claim of the Claimant is admissible.
3.
The claim of the Claimant is partially accepted.
4.
The Respondent, GD Chaves, must pay to the Claimant EUR 120,000 as outstanding
amount plus 5% interest p.a. as from 1 October 2022 until the date of effective payment.
5.
Any further claims of the Claimant are rejected.
6.
A reprimand is imposed on the Respondent.
7.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
8.
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.
9.
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.
10. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8335
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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