Labour Disputes
Texto da decisão
REF. FPSD-8931
Decision of the
Dispute Resolution Chamber
passed on 26 April 2023
regarding an employment-related dispute concerning
the player Cristian Lopez Santamaria
BY:
Dana Al-Noaimi (Qatar), Single Judge
CLAIMANT:
Cristian Lopez Santamaria, Spain
Represented by Josep F. Vandellos Alamilla and Saksham Samarth
RESPONDENT:
Aris FC, Greece
pg. 2
REF. FPSD-8931
I. Facts of the case
1.
On 26 August 2020, the Spanish player, Cristian Lopez Santamaria (hereinafter: the
Claimant), and the Greek club, Aris FC (hereinafter: the Respondent) signed an employment
agreement (hereinafter: the contract) valid as from 28 August 2020 to 30 June 2022.
2.
Furthermore, on the same date, the parties concluded an “Appendix of the federative
contract” (hereinafter: the appendix), valid for the same period as the contract, which under
clause 4 establishes the following:
“FOURTH. The agency fee of the abovementioned transfer is at amount of EUR 20,000 for the
season 2020- 21 ad EUR 20,000 for the season 2021-22. The payment terms are as follows:
1st EUR 10,000 upon the signature of the contract
2nd EUR 10,000 on 30/04/2021
3rd EUR 10,000 on 30/11/2021
4th EUR 10,000 on 30/06/2022
These amounts concern the fee of the player’s agent office and will be paid by the club directly
to the player’s agent office”.
3.
By correspondence dated 2 September 2022, the Claimant put the Respondent in default
of payment of EUR 25,000, corresponding to the residual unpaid amount as per clause 4 of
the Appendix, setting a 10 days’ time limit in order to remedy the default.
4.
A second default notice was sent on 17 October 2022, requesting the payment of the
aforementioned amount within the following 10 days, to no avail.
II. Proceedings before FIFA
5.
On 17 January 2023 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
6.
According to the Claimant, the Respondent failed to comply with clause 4 of the appendix
in spite of the two default notices issued in September and October 2022.
7.
In particular, the Claimant held that “the Respondent has till date only made a payment of EUR
15.000 to the Player’s Agent Office in a total of 3 instalments as follows:
• EUR 2.000 (two thousand euros) on 28 July 2021 (EXHIBIT 3);
• EUR 3.000 (three thousand euros) on 28 July 2021 (EXHIBIT 4) and;
• EUR 10.000 (ten thousand euros).
pg. 3
REF. FPSD-8931
After the payment of EUR 15.000 (fifteen thousand euros), the Respondent did not pay the
remaining amount of EUR 25.000 (twenty-five thousand euros) as per the Appendix.”
8.
In this context, the Claimant sustained that even if the aforementioned clause refers to
Claimant’s agent, the present dispute is nonetheless employment related, with an
international dimension and should therefore be entertained by the Dispute Resolution
Chamber (DRC).
9.
Furthermore, the Claimant underlined that “based on Article 112 of the CO the Claimant can
compel performance by the Respondent towards the Agent. In the alternative, the Claimant
requests that the Respondent is ordered to pay him directly the amounts stipulated in Clause 4
of the Appendix in order to be able to discharge the obligations towards the agent”. (note: “Art.
112 C. Contracts conferring rights on third parties;
I. In general
1. A person who, acting in his own name, has entered into a contract whereby performance is
due to a third party is entitled to compel performance for the benefit of said third party.”
10. The requests for relief of the Claimant, accordingly, were the following:
“(…) The Respondent is obliged to pay the Player’s Agent (in the bank account of the agent
indicated in Exhibit 5) the following amounts as per Clause 4 of the Appendix:
o
o
o
o
EUR 15.000 (fifteen thousand euros) along with an interest of 5% from 1 April 2022; and
EUR 10.000 (ten thousand euros) along with an interest of 5% from 30 June 2022.
Alternatively, the Respondent is obliged to pay the Claimant the following amounts as per
Clause 4 of the Appendix:
EUR 15.000 (fifteen thousand euros) along with an interest of 5% from 1 April 2022; and
EUR 10.000 (ten thousand euros) along with an interest of 5% from 30 June 2022.
4. Following the notification of the FIFA decision, as per Article 12bis para. 2 and para. 4c) and
4d) of the FIFA RSTP to impose the relevant sporting sanctions on the Respondent.”
b. Position of the Respondent
11. In reply to the claim, the Respondent first held that the petition of the Claimant must be
considered inadmissible, as the latter has no standing to sue based on the contractual
obligation not payable to him, but to his agent office only.
12. In particular, the Respondent argued that even though the appendix was concluded
between the Claimant and the Respondent only, its clause 4 “does neither mention any kind
of benefit towards the Claimant, nor contains any promise of the Respondent towards the
claimant for undertaking a specific act towards a third person on behalf of the Claimant.
pg. 4
REF. FPSD-8931
Nowhere in that clause is it stated that the Respondent owes an amount to the Claimant, or that
it promises to pay the claimant’s agent a particular amount on the Claimant’s behalf, in order
for the Claimant to be entitled to lodge the present claim based on the specific fourth clause of
the Appendix. The “Fourth” clause simply contained a statement of the Respondent regarding
the amount of the Claimant’s agent fee for the Claimant’s transfer. So, there is no question in
the present case of a contract in favor of a third person within the meaning of Art. 112 CO, as
the Claimant alleges, which means that the stipulator - Claimant, by signing the contract caused
the Respondent - the “promisor”, to commit in favor of a third party - the beneficiary, who is the
Claimant's agent, and thus the present claim must be rejected due to the Claimant’s lack of
standing to lodge a claim based on that Clause.”
13. In this respect, the Respondent objected to the employment-related nature of the dispute
at stake, hence in its view DRC is not competent to treat the case.
14. Based on the foregoing, the Respondent filed the following request for relief:
“On the basis of all the aforementioned and of the submitted evidence, we hereby respectfully
request your Committee: i. to reject the claim as inadmissible because of the Claimant’s lack of
standing to lodge this claim; ii. to rule that the Claimant shall bear any and all costs of the
proceedings. Subsidiarily and only in the event that the above is rejected, i. to reject the claim as
inadmissible because the lack of FIFA Football Tribunal jurisdiction to hear a claim concerning
Agent’s fee; ii. to rule that the Claimant shall bear any and all costs of the proceedings.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. 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 17 January
2023 and submitted for decision on 26 April 2023. 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. 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 lit. b) of the
Regulations on the Status and Transfer of Players (March 2023 edition), the Single Judge of
the Dispute Resolution Chamber is, in principle, competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between
a player from Spain and a club from Greece.
pg. 5
REF. FPSD-8931
17. Notwithstanding the above, the Single Judge observed that the Respondent objected to the
competence of the Football Tribunal to adjudicate on the case, based on the fact that the
present dispute arose in connection with the payment of sums whose beneficiary is a third
party only, i.e. the agent of the Claimant, hence it is not related to the employment
relationship between the Respondent and the Claimant who, as a consequence, has no
standing to sue.
18. In this respect, the Single Judge wished to remark that the question of standing to sue is a
matter related to the merits, while it does not affect the admissibility of the claim –
assuming that this complies with all the relevant criteria established by FIFA under its
framework.
19. In this context, the Single Judge emphasized that, contrarily to the Respondent’s position,
the dispute at stake is undoubtedly employment-related in the sense attributed by the
Regulations and it has an international dimension, hence the Single Judge is competent to
adjudicate on the matter.
20. Subsequently, the 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 (March 2023 edition), and
considering that the present claim was lodged on 17 January 2023, 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
21. 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
22. Her competence and the applicable regulations having been established, 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 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
pg. 6
REF. FPSD-8931
23. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the diverging positions of the parties regarding the standing to
sue of the Claimant.
24. In particular, the Single Judge observed that, according to the Respondent, the Claimant
would have no standing to sue the latter in the case at stake due to the fact that the
payment of the sums object of the claim constitutes an obligation towards the Claimant’s
agent only, hence the Claimant does not hold any interest, nor it would receive any benefit
from such payment.
25. In this context, the Single Judge also noted that in the Claimant’s view, conversely, the
standing to sue would derive from the fact that the payment of the abovementioned sums
has been stipulated inside a document constitutive of the employment relationship
between the Claimant and the Respondent, i.e., the appendix, hence it is irrelevant whether
the final beneficiary of the payment was a third party. In this respect, the Single Judge
recalled that the Claimant invoked the application of the Swiss Code of Obligations
(hereinafter: Swiss CO), namely art. 112 which recites: “A person who, acting in his own name,
has entered into a contract whereby performance is due to a third party is entitled to compel
performance for the benefit of said third party.”
26. In regard to the above, the Single Judge deemed it appropriate to premise that, as a general
rule, a party has standing to sue if it has in fact suffered an injury of its legal rights, deriving
from a specific and traceable conduct of the contractual counterparty, and which can be
claimed through and redressed by a favourable legal decision.
27. With the above in mind, the Single Judge observed that in the case at stake, even though
clause 4 appears included in the appendix to the employment contract concluded between
the Claimant and the Respondent only, it clearly stipulates that the amount therein
established “concern(s) the fee of the player’s agent office and will be paid by the club directly
to the player’s agent office”. Thus, in the Single Judge’s view, clause 4 does not refer to a right
of the Claimant because he was not the beneficiary of the amounts therein stipulated and
would have not entitlement to claim or receive their payment.
28. Furthermore, the Single Judge emphasized that art. 112 of the Swiss CO does not apply in
the present case, but only the FIFA Rules and Regulations, as stated in the relevant section.
29. Based on the foregoing, the Single Judge concluded that the Claimant has indeed no
standing to sue and therefore the claim is to be rejected.
d. Costs
pg. 7
REF. FPSD-8931
30. 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.
31. 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.
32. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-8931
IV. Decision of the Dispute Resolution Chamber
1. The Football Tribunal has jurisdiction to hear the claim of the claimant, Cristian Lopez
Santamaria.
2. The claim of the Claimant, Cristian Lopez Santamaria, is rejected.
3. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-8931
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 10