Labour Disputes
Texto da decisão
REF. FPSD-14986
Decision of the
Dispute Resolution Chamber
passed on 4 September 2024
regarding an employment-related dispute concerning
the player Sergio Llamas Pardo
BY:
Alejandro Atilio TARABORELLI (Argentina)
CLAIMANT:
Sergio Llamas Pardo, Spain
Represented by Toni Roca Alomar
RESPONDENT:
CD Guabira, Bolivia
pg. 2
REF. FPSD-14986
I. Facts of the case
1.
On 1 July 2023, the Spanish player, Sergio Llamas Pardo (hereinafter: the Claimant or the
Player), and the Bolivian club, CD Guabira (hereinafter: the Respondent or the Club) signed
an employment contract (hereinafter: the Contract) valid as from the date of the signature
until 31 December 2024 and/or the end of the 2024 competitions.
2.
In accordance with the Contract, the Respondent undertook to pay the Claimant the
following amounts:
“CLAUSULA 5°. PAGO POR SERVICIOS, - El presente contrato se suscribe por un monto de
$us. 82.500.- (Son: Ochenta y dos mil quinientos 00/100 dólares americanos), y/o su
equivalente en Bs. 574.200.- (Son: Quinientos setenta y cuatro mil doscientos 00/100
bolivianos), pagaderos en 15 cuotas mensuales de $us. 5.500.- (Son: Cinco mil quinientos
00/100 dólares americanos) y/o su equivalente en Bs. 38.280.- (Son: Treinta y ocho mil
doscientos ochenta 00/100 bolivianos) por el año y medio de trabajo, y/o los días
efectivamente trabajados, cabe señalar que este monto incluye todos los beneficios de
ley.
Si el jugador, juega a nivel profesional en los campeonatos organizados por la
Federación Boliviana de Fútbol por la gestión 2023, por cada 5 partidos jugados, con un
mínimo jugado de 45 minutos por partido, percibirá un bono extra de $us. 300.- (Son:
Trescientos 00/100 dólares americanos), y/o su equivalente en Bs 2.088.- (Son: Dos mil
ochenta y ocho 00/100 bolivianos).
A partir del mes de enero del 2024 el jugador percibirá un incremento de 500.- (Son:
Quinientos 00/100 dólares americanos) mensuales, percibiendo una remuneración
mensual total por el resto de sus servicios prestados, la suma económica de $us. 6.000 (Son: Seis mil 00/100 dólares americanos) y/o su equivalente en Bs. 41.760.- (Son:
Cuarenta y un mil setecientos sesenta 00/100 Bolivianos), más un bono extra de $us.
700.- (Son: Setecientos 00/100 dólares Americanos) y/o su equivalente en Bs. 4.872.- (Son:
Cuatro mil ochocientos setenta y dos 00/100 Bolivianos), por concepto de cada 10
partidos jugados con un mínimo de 45 minutos por partido.
Los pagos se realizarán hasta el 15 de cada mes, así mismo el CLUB deducirá los
Impuestos, aportes y otras deducciones que la ley en vigencia determine.”
“CLAUSULA 6°. PREMIO GLOBAL. - El premio por clasificación a Copa Sudamericana o
Libertadores de América, será un monto global que negociará el Directorio y el Plantel
Profesional.”
Freely translated into English:
“CLAUSE 5. PAYMENT FOR SERVICES, - The present contract is subscribed for an amount
of $us. 82.500.- (Eighty two thousand five hundred 00/100 American dollars), and/or its
equivalent in Bs. 574.200.- (Five hundred and seventy four thousand two hundred 00/100
Bolivianos), payable in 15 monthly instalments of $us. 5.500.- (Five thousand five
pg. 3
REF. FPSD-14986
hundred 00/100 American dollars) and/or its equivalent in Bs. 38.280.- (Thirty eight
thousand two hundred and eighty 00/100 Bolivianos) for the year and a half of work,
and/or the days actually worked, it should be noted that this amount includes all the
benefits of law.
If the player plays at a professional level in the championships organised by the Bolivian
Football Federation for the year 2023, for every 5 matches played, with a minimum of 45
minutes per match, he will receive an extra bonus of $us. 300.- (Three hundred 00/100
American dollars), and/or its equivalent in Bs 2.088.- (Two thousand and eighty eight
00/100 bolivianos).
From the month of January 2024 the player will receive an increase of 500.- (Are: Five
Hundred 00/100 American dollars) monthly, receiving a total monthly remuneration for
the rest of his services rendered, the economic sum of $us. 6.000 - (Six thousand 00/100
American dollars) and/or its equivalent in Bs. 41.760.- (Forty-one thousand seven
hundred and sixty 00/100 Bolivianos), plus an extra bonus of $us. 700.- (Seven hundred
00/100 American dollars) and/or its equivalent in Bs. 4.872.- (Four thousand eight
hundred and seventy two 00/100 Bolivianos), for every 10 matches played with a
minimum of 45 minutes per match.
Payments will be made until the 15th of each month, likewise the CLUB will deduct taxes,
contributions and other deductions that the law in force determines.”
“CLAUSE 6. GLOBAL PRIZE. The prize for qualification to the Copa Sudamericana or
Libertadores de América, will be a lump sum to be negotiated by the Board of Directors
and the Professional Staff.”
3.
On 16 April 2024, the Claimant put the Respondent in default based on article 14bis and
requested payment of USD 29,500, setting a 15 days’ time limit in order to remedy the
default. The Player also argued that he was being forced to train alone and requested the
Club to cease such behaviour within 15 days.
4.
On an unspecified date, the Club sent the Player a draft of a termination agreement, in
which the relevant part of clause three was drafted as follows:
“Segundo plazo de pago: no más tarde del 30 de mayo de 2024, por importe de 19.000
(DIECINUEVE MIL) dólares americanos netos, a través de transferencia bancaria a la
cuenta corriente cuya titularidad pertenece al Jugador, que a continuación se dejará
reseñada.”
Freely translated into English:
“Second instalment of payment: no later than 30 May 2024, in the amount of 19,000
(NINETEEN THOUSAND) US dollars net, by bank transfer to the Player's current account
as indicated below.”
pg. 4
REF. FPSD-14986
5.
On 23 April 2024, the parties concluded a termination agreement (hereinafter: the
Termination Agreement) by means of which they mutually terminated the Contract on the
date of the signature.
6.
In clause three of the Termination Agreement, the parties established the following:
“TERCERA. El Club abonará al Jugador, en concepto de salarios adeudados y
compensación por la rescisión del contrato, la cantidad de 34.000 (TREINTA Y CUATRO
MIL) dólares americanos netos.
La cantidad total reflejada en el párrafo previo (34.000 dólares americanos netos) será
abonada por el Club al Jugador, en los siguientes 2 (dos) plazos de pago:
Primer plazo de pago: el mismo día de la firma del presente acuerdo, esto es, el 23 de
abril de 2024, por importe de 15.000 (QUINCE MIL) dólares americanos netos.
Segundo plazo de pago: no más tarde del 30 de mayo de 2024, por importe de 19.000
(DIECINUEVE MIL) dólares americanos netos, a través de transferencia bancaria a la
cuenta corriente cuya titularidad pertenece al Jugador, que a continuación se dejará
reseñada, (comisiones y gastos Bancarios por cuenta del Jugador)
En el supuesto de que el Club incumpla alguno de los plazos de pago acordados, deberá
abonar al Jugador una indemnización adicional de 7.000 (SIETE MIL) dólares americanos
netos, resultando en este caso el total a pagar por el Club al Jugador de 41.000
(CUARENTA Y UN MIL) dólares americanos netos.
(…)
Además, el mismo día de la firma del presente acuerdo, el Club proporcionará al Jugador
billetes de avión Bolivia-España para dos adultos y un bebé, por importe total de 2.800
(DOL MIL OCHOCIENTOS) dólares americanos.”
Freely translated into English:
"THIRD: The Club shall pay the Player, in respect of wages due and compensation for the
termination of the contract, the sum of 34,000 (THIRTY FOUR THOUSAND US dollars net).
The total amount reflected in the previous paragraph (34,000 US dollars net) shall be
paid by the Club to the Player in the following 2 (two) instalments:
First instalment of payment: on the same day of the signature of this agreement, i.e. 23
April 2024, in the amount of 15,000 (FIFTEEN THOUSAND) US Dollars net.
Second instalment of payment: no later than 30 May 2024, in the amount of 19,000 (NINE
THOUSAND AND NINETEEN THOUSAND) US dollars net, by bank transfer to the Player's
current account as indicated below (bank fees and expenses payable by the Player).
In the event that the Club fails to meet any of the agreed payment deadlines, it shall pay
the Player an additional compensation of 7,000 (SEVEN THOUSAND) US Dollars net,
resulting in this case in a total payable by the Club to the Player of 41,000 (FORTY ONE
THOUSAND) US Dollars net.
(...)
pg. 5
REF. FPSD-14986
In addition, on the same day of the signing of this agreement, the Club will provide the
Player with airline tickets Bolivia-Spain for two adults and a baby, for a total amount of
2,800 (TWO THO THOUSAND EIGHT HUNDRED) US dollars".
7.
On 24 April 2024, the Player received a payment of EUR 12,198.70.
8.
On 31 May 2024, the Player received a payment of EUR 13,574.97.
9.
On 6 June 2024, the Player sent a notice of default to the Club, requesting payment of EUR
5,846.63 net and USD 7,000 net, within 7 days.
10. On 10 June 2024, the Player sent a reminder of the notice of default.
II. Proceedings before FIFA
11. On 18 June 2024, 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
12. In his claim, the Player raised the following arguments:
a) Before signing the Termination Agreement, the Club sent him a draft that did not make
any mention of fees and bank expenses. However, in the Termination Agreement the
Club included a clause attempting to obligate him to bear all fees and expenses.
b) The Player and the Club’s Vice-President held a conversation before signing the
Termination Agreement, in which the Club’s Vice-President informed the Player that only
one minor amendment had been made to clause four of the draft. Therefore, the Club
induced him into error, as the Club’s Vice-President told him that no amendments had
been made to the draft of the Termination Agreement except for a minor one, which
was not the inclusion of the abovementioned clause.
c) The Club did not comply with its financial obligations as it did not pay him USD 34,000
net on the specified due dates.
d) On 24 April 2024, he received EUR 12,198.70, when he should have received EUR 14,053
on 23 April 2024. Additionally, on 31 May 2024, he received EUR 13,574.97, when he
should have received EUR 17,567 on 30 May 2024. In this regard, the Claimant alleged
that on two separate occasions - dates not specified by the Claimant - the Respondent
sent him separate calculations applying several deductions to the first and second
instalments.
pg. 6
REF. FPSD-14986
e) The Club should be condemned to pay the differences between the agreed amounts and
the received amounts, and also should pay the penalty clause set forth in the
Termination Agreement.
13. The requests for relief of the Claimant were the following:
“21. Sobre la base de todo lo anterior, por la presente respetuosamente solicitamos ante
la Cámara de Resolución de Disputas del Tribunal del Fútbol de la FIFA que tenga por
presentada esta demanda en tiempo y forma, se sirva admitirla junto con los
documentos que la acompañan y, previos los trámites legales oportunos, resuelva
condenar a Club Deportivo Socio Cultural Guabirá a abonar a Sergio Llamas Pardo
- La suma de 5.846,63 € netos, en concepto de salarios adeudados y compensación por
rescisión de contrato;
- La suma de USD 7.000 netos, en concepto de indemnización adicional por el retraso en
los pagos acordados.
22. Adicionalmente, solicitamos se remita el caso a la Comisión Disciplinaria y/o de Ética
de la FIFA, por si la actuación del Vicepresidente del Club, Sr. Edgar Menacho, fuera
constitutiva de infracción a las disposiciones del Código Disciplinario y/o de Ética por
engaño deliberado al Jugador al modificar el Acuerdo sin informarle de ello.”
Freely translated into English:
"21. On the basis of the foregoing, we hereby respectfully request the Dispute Resolution
Chamber of the FIFA Football Tribunal to consider this claim to have been filed in due
time and form, to admit it together with the accompanying documents and, following the
appropriate legal proceedings, to order Club Deportivo Socio Cultural Guabirá to pay
Sergio Llamas Pardo
- The sum of €5,846.63 net, in respect of wages owed and compensation for termination
of contract;
- The sum of USD 7,000 net, as additional compensation for the delay in the agreed
payments.
22. In addition, we request that the case be referred to the FIFA Disciplinary and/or Ethics
Committee, in case the actions of the Club's Vice-President, Mr. Edgar Menacho,
constitute a breach of the provisions of the Disciplinary and/or Ethics Code for
deliberately deceiving the Player by modifying the Agreement without informing him.”
b. Position of the Respondent
14. Despite of having been invited to do so, the Club failed to reply to the claim.
pg. 7
REF. FPSD-14986
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge (hereinafter: Single Judge) analysed whether he was competent
to deal with the case at hand. In this respect, he took note that the present matter was
presented to FIFA on 18 June 2024 and submitted for decision on 4 September 2024. Taking
into account the wording of art. 34 of the March 2023 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.
16. Furthermore, 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 (June 2024 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 Spanish player
and a Bolivian club.
17. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 18 June 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
18. 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 he 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
19. Having established the competence and the applicable regulations, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge 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 it will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
pg. 8
REF. FPSD-14986
i. Main legal discussion and considerations
20. The Single Judge then moved to the substance of the matter and took note of the fact that
the case at hand is a claim of a player against a club for outstanding amounts and a penalty
clause arising from a termination agreement.
21. The Single Judge recalled that, according to the Player, the Club failed to pay the total
amount established in the Termination Agreement in a timely manner. Additionally, the
Single Judge noted that the Player asserted that the Club induced him into error by
including a clause intended to make him bear all the fees for the bank transactions, and it
was based on this argument that the Club did not pay the full amount.
22. Conversely, the Single Judge pointed out that the Respondent did not provide its position
on the claim, and according to the long-standing jurisprudence of the Football Tribunal, it
must be considered that it renounced its right to defence. Consequently, the decision shall
be taken based on the documentation already on the file (i.e., the statements and
documents presented by the Claimant).
23. In this context, the Single Judge acknowledged that his task was to establish whether the
Club failed to pay the Player the total amount established in the Termination Agreement in
a timely manner, and, in such case, which are the consequences.
24. First, the Single Judge addressed the Player’s argument regarding the inducement into
error. In this sense, the Single Judge noted that in the draft sent to the Player by the Club
there was no mention of fees and bank expenses. Furthermore, the Single Judge observed
that the Player provided evidence demonstrating that the Club’s Vice-President assured
him that only one minor amendment had been made to the draft and did not make any
mention of the clause that, according to the Player, the Club added without his knowledge.
In this regard, the Single Judge concluded that the Club’s Vice-President did not inform the
Player that clause three of the Termination Agreement had been amended.
25. Notwithstanding the foregoing, the Single Judge referred to the longstanding jurisprudence
of the Football Tribunal, according to which a contractual party signing a document of legal
significance, as a general rule, does so under its own responsibility and is liable to bear the
legal consequences of such signature. Therefore, the Player had the burden to verify the
relevant information inserted in the final document before signing it.
26. Consequently, the Single Judge decided that he cannot establish that the Player was
induced into error.
27. In light of the above, the Single Judge went on to analyse which were the amounts that the
Club was obliged to pay, and which amounts it actually paid. The Single Judge observed
that in the first and second paragraph of clause three of the Termination Agreement, it was
clearly stipulated that the Club would pay the Player USD 34,000 net in two instalments.
pg. 9
REF. FPSD-14986
Additionally, the Single Judge noted that the Termination Agreement established that the
first payment would be of USD 15,000 net, without any further clarifications. However,
regarding the second payment, and although it stated that the payment would be of USD
19,000 net, it was also stipulated that the Player should bear all fees and bank expenses.
28. Hence, the Single Judge interpreted that clause three of Termination Agreement was
contradictory, as it first stated that the Player would receive a net amount and then
mentioned that he was liable for all fees and expenses, at least regarding the second
payment, which is clearly inconsistent with the concept of net payments.
29. Given that it is undisputed that the Club drafted the Termination Agreement, in the Single
Judge’s view, the principle interpretatio contra stipulatorem shall apply. Thus, the Single
Judge concluded that the Club was obliged to pay the Player USD 34,000 net, without being
the Player liable to bear any fees or expenses.
30. In this regard, the Single Judge noted that the Player received EUR 12,198.70 for the first
instalment, which were equivalent to USD 13,035.53, and EUR 13,574.97 for the second
instalment, which were equivalent to USD 14,731.55. In this sense, the Club paid USD
27,767.08 out of the contractually agreed USD 34,000, i.e., failed to pay USD 6,232.92.
31. Furthermore, the Single Judge pointed out that the Club was obliged to pay the first
instalment on 23 April 2024 and the second instalment on or before 30 May 2024. Based
on the evidence on file, the Player received the amounts on 24 April 2024 and on 31 May
2024. Therefore, the Single Judge highlighted that, in addition to not fully complying with
the payments, the Club also failed to pay on time.
32. Having stated the above, the Single Judge turned his attention to the consequences of the
Club’s non-compliance. First, the Single Judge noted that, although the amounts in the
Termination Agreement were set forth in USD, the Club paid them in EUR. Additionally, the
Player requested the differences in EUR and the Club did not dispute this request.
Consequently, the Single Judge decided to award the Player the differences in EUR, which
amount to EUR 5,771.83 net.
33. Additionally, the Single Judge highlighted that in clause three of the Termination
Agreement, it was stated that, in case the Club failed to pay in a timely manner, it should
pay the Player an additional compensation of USD 7,000 net. As the Player received both
instalments with a one-day delay, and both payments were incomplete, the Single Judge
decided that the Club shall pay the additional compensation of USD 7,000 net.
ii. Compliance with monetary decisions
34. 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 his decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
pg. 10
REF. FPSD-14986
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
35. 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.
36. 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.
37. 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.
38. 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
39. 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, the Single Judge decided that no procedural costs were to be
imposed on the parties.
40. 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.
41. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-14986
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sergio Llamas Pardo, is partially accepted.
2.
The Respondent, CD Guabira, must pay to the Claimant the following amounts:
- EUR 5,771.83 net as outstanding remuneration;
- USD 7,000 net as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
5.
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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 12
REF. FPSD-14986
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
Fédération Internationale de Football Association – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 13