Labour Disputes
Texto da decisão
REF. FPSD-9269
Decision of the
Players Status Chamber
passed on 11 April 2023
regarding an employment-related dispute concerning
the player Gonzalo Nicolas Martinez
BY:
Luis Kanonnikoff (Paraguay), Single Judge of the PSC
CLAIMANT:
Atlanta United FC, USA
Represented by Centrefield Law LLP
RESPONDENT:
Al Nassr, Saudi Arabia
Represented by Muñoz & Arias Sports Lawyers
pg. 2
REF. FPSD-9269
I. Facts of the case
1.
On 4 September 2020, the Major League Soccer (MLS) and the Saudi club, Al Nassr
concluded an agreement (hereinafter: transfer agreement) regarding the definitive transfer
of the player Gonzalo Nicolas Martinez (hereinafter: player) from Atlanta United FC to the
Saudi club.
2.
The Preamble of the transfer agreement, inter alia, establishes: “Whereas 100% of the
economic and federative rights arising out of the MLS Player Contract are owned by MLS and
the Player is currently playing for Atlanta United Football Club, a member club of the MLS”.
3.
According to the transfer agreement, the Respondent undertook to pay to the MLS a
transfer fee of USD 16,000,000, payable as follows:
- USD 4,875,000 within 10 calendar days;
- USD 5,362,500 until 1 October 2021;
- USD 5,362.500 until 1 October 2022.
4.
Art. 2.6 of the transfer agreement reads as follows: “In the event that Al Nassr (i) fails to make
any payment due to MLS under this agreement by the due date for the payment or (ii) fails to
make any required notification to MLS under this Transfer Agreement by the date specified
herein, then with respect to (i) and (ii), interest shall accrue on any overdue amount(s) at the rate
of five per cent (5%) per annum. Such interest shall accrue on a daily basis from (x) the date of
default until the actual date of payment of the overdue amount(s) with respect to (i) and (y) the
last date by which Al Nassr was required to provide notification until the actual date of payment
of the overdue amount(s) with respect to (ii). Al Nassr shall pay the interest together with the
overdue amount(s).”
5.
Art. 8.5 of the transfer agreement holds: “It is further acknowledged and agreed by Al Nassr
that in addition to MLS, the MLS Team [Atlanta] shall have the right and standing to enforce the
terms of this Transfer Agreement for and on behalf of MLS and itself, including, but without
limitation, enforcing the terms of this Transfer Agreement against Al Nassr in any proceedings
commenced before any competent body, including FIFA and the CAS”.
6.
On 3 March 2022, the Single Judge of the PSC decided a contractual dispute between the
parties concerning the second instalment (FPSD-4392) and awarded the Claimant the
amount of USD 5,362,500.
7.
On 20 January 2023, the MLS put the Respondent in default and requested payment of USD
5,362,500, corresponding to the third instalment of the transfer fee, within 10 days.
8.
On 1 February 2023, CAS issued an arbitral award and confirmed the decision taken by the
SJ of the PSC on 3 March 2022 regarding the second instalment of the transfer agreement
(CAS 2022/A/8837).
pg. 3
REF. FPSD-9269
II. Proceedings before FIFA
9.
On 14 February 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
10. In its claim, Atlanta United FC requested payment of USD 5,362,500, corresponding to the
third instalment of the transfer fee, plus 5% interest p.a.
11. On account of the above, the Claimant held that the third instalment resulting from the
transfer agreement remained outstanding, even after the default notice.
12. Atlanta United FC held that, even though the agreement was signed by the MLS, art. 8.5 of
said agreement empowers it to claim such amount in front of the SJ PSC.
13. Furthermore, the Claimant held that art. 12bis shall be applied.
b. Position of the Respondent
14. In its reply, the Respondent partially rejected the claim and pointed out that at the time the
third instalment fell due, the appeal to CAS regarding the second instalment was not yet
decided.
15. On account of the above, the Respondent argued that it could not be held liable to pay the
third instalment while the important question regarding the standing to sue was not yet
decided in a final and binding decision.
16. In this context, the Saudi club also held that interest regarding the third instalment should
only start to be applied as of 1 February 2023 (date of the CAS award) and art. 12bis RSTP
shall not be applied at all, in light of the ongoing CAS proceedings at time of the due date.
17. In this line of argumentation, the Respondent held that it shall not be held liable for
procedural costs.
pg. 4
REF. FPSD-9269
III. Considerations of the Players Status Chamber
a. Competence and applicable legal framework
18. First of all, the Single Judge of the Players Status Chamber (hereinafter also referred to as
Single Judge) 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 14 February 2023
and submitted for decision on 11 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.
19. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 2 of the Procedural
Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 par.
1 lit. f) of the Regulations on the Status and Transfer of Players (October 2022 edition), he
is competent to deal with the matter at stake, which concerns a contractual dispute
between clubs belonging to different associations.
20. 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 (October 2022 edition),
and considering that the present claim was lodged on 14 February 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
21. In addition , the Single Judge wished to clarify that the legal concept of standing is a matter
of substance and thus shall be addressed accordingly. Therefore, whether or not Atlanta
has standing to sue is a matter that pertains to the merits of this dispute.
b. Burden of proof
22. 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).
pg. 5
REF. FPSD-9269
c. Merits of the dispute
23. 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
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
24. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties have a dispute arising from the transfer
agreement and the payment of its transfer fee.
25. In this context, the Single Judge acknowledged that his task was to determine whether the
Claimant has standing to sue and if so, if the claimed amounts had in fact remained unpaid
by the Respondent and in the affirmative, whether the latter had a valid justification for not
having complied with its financial obligations.
26. First of all, the Single Judge addressed the issue about the standing to sue of Atlanta. In this
context, he was confident that, having found that the MLS acted as an agent of Atlanta,
with the corresponding consequence that Atlanta was to be deemed as a contractual party,
it became evident that Atlanta had standing to sue.
27. In addition to the above, the Single Judge also found it important to outline the contents of
clause 8.5 of the transfer agreement: “It is further acknowledged and agreed by Al Nassr that
in addition to MLS, the MLS Team [Atlanta] shall have the right and standing to enforce the
terms of this Transfer Agreement for and on behalf of MLS and itself, including, but without
limitation, enforcing the terms of this Transfer Agreement against Al Nassr in any proceedings
commenced before any competent body, including FIFA and the CAS”.
28. Such contractual clause is clear, in the Single Judge’s opinion: Atlanta is empowered to
enforce the transfer agreement on its own, moreover due the assessment that the contract
is entered into by the initiative of Atlanta and not the MLS itself.
29. Based on the foregoing, the Single Judge confirmed that Atlanta also has standing to sue.
30. As to the substance, the Single Judge took notice that it remained undisputed that the
Respondent failed to remit the claimed third instalment of the transfer fee.
31. The Single Judge rejected the Respondent’s argument that in light of the ongoing CAS
proceeding shall be rejected as to the principal amount as well as the interest.
pg. 6
REF. FPSD-9269
ii. Consequences
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
which were outstanding under the transfer agreement, i.e. USD 5,362,500.
33. Lastly, taking into consideration the Claimant’s request as well as the constant practice of
the Chamber in this regard, the latter decided to award the Claimant interest on said
amountat the rate of 5% p.a. as of 2 October 2022 until the date of effective payment.
iii. 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 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.
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.
pg. 7
REF. FPSD-9269
d. Costs
39. Finally, the Single Judge referred to art. 25 par. 2 of the Procedural Rules, according to which
in proceedings before the Players’ Status Chamber including its Single Judge, costs in the
maximum amount of USD 25,000 are levied and according to which the costs are to be
borne in consideration of the parties’ degree of success in the proceedings and are
normally to be paid by the unsuccessful party.
40. Taking into account that the responsibility of the failure to comply with the payment of the
amount as agreed in the transfer agreement can entirely be attributed to the Respondent,
the Single Judge concluded that the Respondent has to bear the entirety of costs of the
current proceedings before FIFA.
41. According to Annexe 1 of the Procedural Rules, the costs of the proceedings are to be levied
on the basis of the amount in dispute. Consequently, the Single Judge concluded that the
maximum amount of costs of the proceedings corresponds to USD 25,000.
42. In light of the above, the Single Judge determined the costs of the current proceedings to
the amount of USD 22,000 and concluded that said amount has to be paid by the
Respondent in order to cover the costs of the present proceedings.
43. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 8
REF. FPSD-9269
IV. Decision of the Players Status Chamber
1.
The claim of the Claimant, ATLANTA UNITED FC, is partially accepted.
2.
The Respondent, Al Nassr, must pay to the Claimant the following amount(s):
- USD 5,362,500 plus 5% interest p.a. as from 2 October 2022 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. 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.
The final costs of the proceedings in the amount of USD 22,000 are to be paid by the
Respondent to FIFA. FIFA will reimburse to the Claimant the advance of costs paid at the
start of the present proceedings (cf. note relating to the payment of the procedural costs
below).
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-9269
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