Labour Disputes
Texto da decisão
REF FPSD-2565
Decision of the
Dispute Resolution Chamber
passed on 15 December 2021
regarding an employment-related dispute concerning the player Francisco
Miguel Varela Martin
BY:
Michelle Colucci (Italy), Single Judge of the DRC
CLAIMANT:
Francisco Miguel Varela Martin, Spain
Represented by Esquad Abogados
RESPONDENT:
CF Os Belenenses Futebol SAD, Portugal
Represented by Mr Carlos Soares and Ms Natacha Soares
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REF FPSD-2565
I.
Facts of the case
1.
On 19 May 2021, the Spanish player, Francisco Miguel Varela Martin (hereinafter: the player
or the Claimant) and the Portuguese club, CF Os Belenenses Futebol SAD (hereinafter: the
club or the Respondent) concluded an employment contract (hereinafter: the contract), valid
for 3 sporting seasons (2019/2020, 2020/2021, 2021/2022), i.e. until 30 June 2022.
2.
On 6 January 2021, the parties concluded a termination agreement, in accordance with which
their contractual relationship ceased to exist as from the date of its signature and whereby
the club undertook to pay to the player, ex. clauses 2.1 and 2.2 of the termination agreement,
the amount of EUR 31,157 net, as fee for the early termination of the contract (hereinafter:
termination fee), payable as follows:
-
EUR 7,660 on 6 January 2021;
EUR 2,350 by 15 April 2021;
EUR 2,350 by 15 May 2021;
EUR 2,350 by 15 June 2021;
EUR 2,350 by 15 July 2021;
EUR 2,350 by 15 August 2021;
EUR 2,350 by 15 September 2021;
EUR 2,350 by 15 October 2021;
EUR 2,350 by 15 November 2021;
EUR 2,350 by 15 December 2021;
EUR 2,350 by 15 January 2022.
3.
In accordance with clause 3 of the contract, the parties agreed that, should the club fail to
pay any of the abovementioned instalments on their due date, the player would put the club
in default of payment concerning the overdue amount, granting the club a 7 days’ deadline
to remedy the default, deadline which expiry without the club’s compliance therewith would
trigger the payment of the residual value of the termination fee (hereinafter: the acceleration
clause).
4.
By means of his correspondence dated 19 April 2021, the player put the club in default of
payment of the amount of EUR 2,350, which was payable by 15 April 2021, i.e. the second
instalment of the termination fee; thereby granting the club a 7 days’ deadline to remedy the
default; however, to no avail (note: document on file).
II. Proceedings before FIFA
5.
On 19 May 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
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a. Claim of the Claimant
6.
On 19 May 2021, the player lodged a claim against the Respondent, requesting to be
awarded outstanding remuneration in the total amount of EUR 23,496, corresponding to the
full value of the termination fee, minus the first instalment thereof, which -as acknowledged
by the player- was duly paid by the club, plus 5% interest p.a. as from 15 April 2021. In
addition, the Claimant requested the Respondent be sanctioned ex. art. 12bis of the RSTP
and be ordered to pay all costs in connection with the present proceedings.
7.
In his claim, the Claimant argued that, in compliance with clause 3 of the termination
agreement, it put the club in default of payment on 19 April 2021, upon the club’s failure to
comply with the payment of the second instalment of the termination fee, thereby granting
the club a 7 days’ deadline to remedy the default; to no avail.
8.
Consequently, the Claimant underscored that the acceleration clause was activated,
triggering the payment of the residual value of the termination fee in the amount of EUR
23,496.
b. Reply of the Respondent
9.
On its part, the Respondent simply provided documentation pertaining to the alleged
payment of the following amounts:
-
EUR 7,661, paid on 6 January 2021 (corresponding to the first instalment of the
termination fee);
-
EUR 2,350, paid on 28 May 2021 (corresponding to the second instalment of the
termination fee).
c. Replica of the Claimant
10. In his replica, the Claimant acknowledged having receipt the payment of both, the first and
the second instalments of the transfer fee, as indicated by the Respondent.
11. However, the Claimant held that the Respondent only proceeded with the payment of the
second instalment of the termination fee on 28 May 2021, i.e. once the deadline granted by
the Claimant to the Respondent on his letter dated 19 April 2021 had expired and -what is
more- after the present claim had been lodged.
12. In this regard the Claimant argued that the late payment of the second instalment of the
termination fee does not prevent clause 3 of the termination agreement to trigger its financial
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consequences, i.e. the acceleration of the residual value of the termination fee, insofar as the
Respondent failed to pay the said instalment by its due date.
13. In this context, the Claimant amended its claim, requesting outstanding remuneration in the
total amount of EUR 21,146 net, i.e. the residual value of the termination fee as from the
third instalment thereof onwards, plus 5% interest p.a., calculated by the Claimant as follows:
-
On the amount of EUR 23,496, as from 15 April 2021 until 28 May 2021;
-
On the amount of EUR 21,145, as from 28 May 2021 until the date of effective
payment.
d. Duplica of the Respondent
14. In its duplica, the Respondent acknowledged being in default of payment of the amount of
EUR 21,146, corresponding to the full value of the termination fee, minus the amount
corresponding to the first and second instalments thereof.
15. In its request for relief, the Respondent requested to reject the claims of the Claimant
pertaining to the application of sanctions ex. art. 12bis and to the Respondent being
condemned to pay any eventual costs in connection with the procedure.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter referred to as the
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 19 May 2021 and
submitted for decision on 15 December 2021. Taking into account the wording of art. 34 of
the October 2021 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.
17. 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 (August 2021 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 Portuguese club.
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18. 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 Player (August 2021 edition) and
considering that the present claim was lodged on 19 May 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
19. 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
20. His 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, he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter and wished to recall that this.is a case where the Claimant is requesting to be awarded
outstanding remuneration in the total amount of EUR 21,146 net, i.e. the residual value of
the termination fee as from the third instalment thereof (included) onwards, plus 5% interest
p.a., as follows: on the amount of EUR 23,496, as from 15 April 2021 until 28 May 2021; on
the amount of EUR 21,145, as from 28 May 2021 until the date of effective payment.
22. Furthermore, the Single Judge noted that, on its part, the Respondent acknowledged being
in default of payment of the amount claimed and only rejected the claims of the Claimant
pertaining to the application of sanctions ex. art. 12bis and to the Respondent being
condemned to pay any eventual costs in connection with the procedure.
23. The above being said, the Single Judge firstly stressed that the allegations of the Claimant
concerning his entitlement to the principal amount claimed have been admitted by the
Respondent. In this respect, the Single Judge noted that the wording of clause 3 of the
termination agreement (the acceleration clause) is clear when stating that failure to comply
with the payment of any of the instalments of the termination fee included in clause 2
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thereof, would accelerate the payment of the residual value of the termination fee, provided
that the Claimant hat put the Respondent in default of payment of the overdue instalment(s)
and had granted the Respondent a 7 days deadline to remedy the default without the
Respondent doing so within the said deadline.
24. In the present case, continued the Single Judge, the conditions set in clause 3 for the
activation of the acceleration clause seem to have been met: the Claimant put the Respondent
in default of payment on 19 April 2021 concerning the second instalment of the termination
fee (due by 15 April 2021) and granted the club a 7 days’ deadline to comply with its financial
obligations; however, the Respondent failed to do so and only proceeded with the payment
of the said instalment on 28 May 2021, i.e. after the expiry of the abovementioned deadline,
and -what is more- once the player had lodged his claim against the club before FIFA.
25. In view of all of the above, the Single Judge concluded that clause 3 of the termination
agreement was activated and the Respondent shall pay to the Claimant the residual value of
the termination fee.
ii. Consequences
26. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the Respondent.
27. The Single observed that, due to the activation of the acceleration clause, the Claimant is
entitled to outstanding remuneration in an amount equal to the residual value of the
termination fee, i.e. EUR 21,145, i.e. as from the third instalment of the termination fee
(included) onwards, in accordance with the general legal principle of pacta sunt servanda.
28. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% interest p.a. p.a. as follows: on the amount of EUR 23,496, as from 27 April
2021 (the day following the expiry of the deadline granted by the Claimant on its letter dated
19 April 2021, i.e. the 8th day, ex. clause 3 of the termination agreement), until 28 May 2021
(date on which the Respondent paid the second instalment of the termination fee); and on
the amount of EUR 21,145, as from 29 May 2021 until the date of effective payment.
iii. Compliance with monetary decisions
29. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
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30. 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.
31. 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. 24bis par. 2, 4, and 7 of the Regulations.
32. 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.
33. 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. 24bis par. 8 of
the Regulations.
d. Costs
34. 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.
35. 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.
36. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Francisco Miguel Varela Martin, is partially accepted.
2.
The Respondent, CF Os Belenenses Futebol SAD, has to pay to the Claimant EUR 21,145 as
outstanding remuneration, plus 5% interest p.a., calculated as follows:
- On the amount of EUR 23,496, as from 27 April 2021 until 28 May 2021;
- On the amount of EUR 21,145, as from 29 May 2021 until the date of effective payment.
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. 24bis 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 the ban shall
be 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
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. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
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7. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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