Dispute Resolution Chamber
Texto da decisão
REF FPSD-2245
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 16 June 2021
regarding an employment-related dispute concerning the player Linus Hallenius
BY:
Alexandra Gómez Bruinewoud (Uruguay & The Netherlands), DRC Judge
CLAIMANT:
Linus Hallenius, Sweden
Represented by Luca Tettamanti
RESPONDENT:
Apoel FC, Cyprus
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I.
FACTS OF THE CASE
On
In
Clause
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II.
PROCEEDINGS BEFORE FIFA
7.
On 6 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
8.
The claim of the Claimant
According to the Claimant, he is entitled to receive the total amount of EUR 105,000,
broken down as follows:
a. EUR 18,750 as outstanding remuneration plus 5% interest p.a. as from 26 January
2021;
b. EUR 18,750 as outstanding remuneration plus 5% interest p.a. as from 13 March
2021;
c. EUR 18,750 as outstanding remuneration plus 5% interest p.a. as from 13 March
2021;
d. EUR 18,750 as outstanding remuneration plus 5% interest p.a. as from 13 March
2021; and
e. EUR 30,000 as contractual penalty.
9.
The player justified his calculations on the penalties as follows:
Month
December 2020
January 2021
February 2021
March 2021
Subtotal
TOTAL
10.
Overdue Instalment
EUR 18,750
EUR 18,750
EUR 18,750
EUR 18,750
EUR 18,750
Penalty
EUR 10,000
EUR 10,000
EUR 5,000
EUR 5,000
EUR 30,000
Reference
First Notice
Second Notice
Second Notice
Second Notice
EUR 105,000
In his claim, the player recalled the content of art. 12bis of the FIFA Regulations on the
Status and Transfer of Players (RSTP), as well as FIFA DRC and CAS’ jurisprudence on the
matter. By doing so, the player stressed that the club failed to pay a substantial part of the
termination agreement without a prima facie contractual basis and despite several notices.
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11.
At this point, the player also remarked that the club signed the termination agreement after
the COVID outbreak and, hence, that any exception eventually raised by the club based on
the pandemic should be entirely dismissed.
12.
In continuation, the player argued that the club’s default triggered the mechanism
described in clause 6 of the termination agreement. Thus, the remaining instalments (i.e.
February and March 2021) became immediately due, as well as the contractual penalties
agreed upon by the parties.
13.
The player further added that “the amount of the penalties due is proportionate and
reasonable according to the jurisprudence as (i) they represent only 17% (seventeen
percent) of the overall sum due under the Agreement, (ii) the amount of the penalties due
after the acceleration provision was triggered – by the persistent failure of the Club, by the
way – was 50% less than the standard penalties on single instalments overdues and (iii) no
interests are asked on the amounts of the penalties.”.
14.
Finally, the player requested sporting sanctions to be imposed on the club.
b.
Position of the Respondent
Subsequently
Furthermore
18.
Therefore
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
19.
Competence and applicable legal framework
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
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 06 April 2021 and
submitted for decision on 16 June 2021. Taking into account the wording of art. 21 of the
January 2021 edition of the Rules Governing the Procedures of the Players’ Status
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Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
20.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition February 2021), she is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Swedish player and a Cypriot club.
21.
Subsequently, the DRC 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 Player (edition February 2021),
and considering that the present claim was lodged on 06 April 2021, said edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b.
Burden of proof
22.
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 she may consider
evidence not filed by the parties.
23.
In this respect, the DRC 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.
24.
Merits of the dispute
Her competence 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
documentation on file. However, the DRC 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
25.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note of the fact that t
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26.
To this end, the DRC Judge noted that it remained undisputed between the parties that the
instalments due by December 2020 and January 2021 were not paid by the club, hence,
triggering the acceleration clause stipulated in the termination agreement.
27.
Consequently, the DRC Judge came to the conclusion that all the remaining amounts
became immediately due as from the 11th day as of the second notice sent by the player
to the club (i.e. 13 March 2021) as per the explicit and unequivocal wording of the
termination agreement.
28.
Subsequently, the DRC Judge took note of the fact that the club has disputed the
validity/proportionality of the penalties established in said termination agreement.
Accordingly, the DRC Judge confirmed again that the wording of clause 6 of the
termination agreement – and specially the practical example therein described – leaves no
room for interpretation (in claris non fit interpretatio). The DRC Judge was satisfied that the
parties had freely agreed to such penalties in a rather unambiguous manner.
29.
What is more, the DRC Judge underlined that in spite of the club’s allegations, the
abovementioned fees are both reasonable and proportionate in accordance with the DRC
long-standing jurisprudence. In this respect, she highlighted that the total amount due as
contractual penalty corresponds to 40% of the outstanding amount (i.e. EUR 30,000 / EUR
75,000).
30.
Accordingly, the DRC Judge found that both the first and the second outstanding
instalments (i.e. December 2020 and January 2021) shall be accrued by a fine of EUR 10,000
each, whereas the two remaining instalments (i.e. February and March 2021) shall be
accrued by a fine of EUR 5,000 each, in strict application of the termination agreement.
31.
Based on the foregoing and in line with the principle of pact sunt servanda, the DRC Judge
decided that the club shall be liable to pay the player the following amounts:
a. EUR 18,750 as outstanding remuneration plus 5% interest p.a. as from 26 January
2021 until the date of effective payment;
b. EUR 56,250 as outstanding remuneration plus 5% interest p.a. as from 13 March 2021
until the date of effective payment; and
c. EUR 30,000 as contractual penalty.
ii. Consequences under art. 12bis of the Regulations
32.
Having stated the above, the DRC Judge turned her attention to the question of the
consequences, attributable to the Respondent, of having overdue payables in light of art.
12bis of the Regulations.
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33.
In this context, the DRC Judge took particular note of the fact that, on 15 January 2021
and 2 March 2021, the Claimant put the Respondent in default of payment of inter alia
EUR 37,500, setting a time limit expiring of 10 days in order to remedy the default.
34.
Consequently, the DRC Judge concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor
(player or club) must have put the debtor club in default in writing and have granted a
deadline of at least ten days for the debtor club to comply with its financial obligation(s).
35.
In addition, the DRC Judge established, in line with the previous section of this decision,
that the Respondent had delayed a due payment for more than 30 days without a prima
facie contractual basis.
36.
Taking into account art.12bis par. 2 of the Regulations, the DRC Judge recalled 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.
37.
The DRC Judge moreover established that in virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the Respondent.
38.
Bearing in mind the above and the fact that this is a first offense of the Respondent in the
last 2 years, the DRC Judge decided to impose a warning on the Respondent in accordance
with art. 12bis par. 4 lit. a) of the Regulations. The DRC Judge wished to highlight that a
repeated offence will be considered as an aggravating circumstance and lead to more severe
penalty in accordance with art. 12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
39.
Finally, taking into account the consideration the applicable Regulations, the DRC Judge
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.
40.
In this regard, the DRC 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.
41.
Therefore, bearing in mind the above, the DRC 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
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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.
42.
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.
43.
The DRC 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. 24bis
par. 8 of the Regulations.
d.
Costs
44.
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, she decided that no
procedural costs were to be imposed on the parties.
45.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
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IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Linus Hallenius, is accepted.
2.
The Respondent, Apoel FC, has to pay to the Claimant, the following amounts:
- EUR 18,750 as outstanding remuneration plus 5% interest p.a. as from 26 January 2021
until the date of effective payment;
- EUR 56,250 as outstanding remuneration plus 5% interest p.a. as from 13 March 2021
until the date of effective payment; and
- EUR 30,000 as contractual penalty.
3.
A warning is imposed on the Respondent.
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 Judge:
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:
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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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