Labour Disputes
Texto da decisão
REF FPSD-4316
Decision of the Single Judge of the
DRC
passed on 9 February 2022
regarding an employment-related dispute concerning the player Hugo Filipe
Goncalves Martins de Sousa
BY:
Alexandra Gómez Bruinewoud (Netherlands/Uruguay), Single Judge of the PSC
CLAIMANT:
Hugo Filipe Goncalves Martins de Sousa, Portugal
Represented by Pedro Macieirinha, Jose Macieirinha e Associados
RESPONDENT:
Aris FC, Greece
Represented by Chrissa Sevastopoulou
Page 2
REF FPSD-4316
I.
Facts of the case
1.
On 15 October 2020, the Portuguese player, Hugo Filipe Goncalves Martins de Sousa
(hereinafter: the Claimant or player), and the Greek club, Aris FC (hereinafter: the Respondent
or club) signed an settlement agreement, according to which the Respondent acknowledged
owing an amount of EUR 235,000 resulting from the employment relationship between the
parties.
2.
According to the settlement agreement, the Respondent undertook to pay the Claimant the
total amount of EUR 235,000 as follows:
EUR 30,000 on 31 October 2020;
EUR 7,000 in monthly instalments during 28 months (between 30 November 2020
and 28 February 2023);
EUR 9,000 on 31 March 2023.
3.
Art 2 b) of the settlement agreement established: “In case the club delays or does not pay
two instalments in a row or two interpolated, and such delay or non-payment exceeds ten
days, all pending instalments become due with a penalty of 7,000 euros, provided that the
player has first sent a written notice to Aris FC setting a deadline of twenty (20) days for the
remedy of the breach (i.e. the delay of the payment or the non-payment) and such deadline
has elapsed without Aris FC remedying the breach”.
4.
On 20 September 2021, the player put the club in default and requested payment of EUR
49,000, corresponding to the instalments due between 31 March 2021 until 30 September
2021 (7x EUR 7,000), within 10 days.
5.
On 21 September 2021, the club remitted a payment in the amount of EUR 21,000 to the
player.
6.
On 23 September 2021, the player insisted that the amount of EUR 28,000 remained
outstanding and requested payment within 10 days.
7.
On 26 October 2021, the player sent another default notice, requesting payment of EUR
35,000 (previous debt plus penalty of EUR 7,000) within 10 days.
8.
On 29 October 2021, the club remitted a payment in the amount of EUR 7,000 to the player.
9.
On 3 November 2021, the club remitted a payment in the amount of EUR 7,000 to the player.
Page 3
REF FPSD-4316
II. Proceedings before FIFA
10. On 17 November 2021, 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
11. In his claim, the Claimant requested payment of EUR 28,000, as follows:
EUR 21,000 as instalments from the settlement agreement due between 31 August
2021 and 31 October 2021 (3x EUR 7,000);
EUR 7,000 as penalty in accordance with art. 2 b) of the settlement agreement.
The player requested interest of 5% p.a. as of the due dates.
12. Moreover, the player held that the claimed amounts remained outstanding and he pointed
out that he put the club in default several times and that in total the 20 days of default were
met as required in clause 2b) of the settlement agreement.
13. On account of the above, the player argued that the penalty shall apply.
b. Position of the Respondent
14. In its reply, the Respondent held that it remitted the outstanding amount of EUR 21,000 on
3 December 2021 to the player.
15. As to the penalty, the Respondent maintained that it shall not apply since it is “abusive,
immoral and illegal”.
16. Moreover, the Respondent pointed out that the player did not comply with the wording of
the penalty clause as he never requested payment within 20 days. The argumentation that
the 20 days were reached in various default notices has to be rejected.
c. Reaction of the Claimant to the alleged payment
17. The player confirmed having received the amount of EUR 21,000 on 3 December 2021.
Page 4
REF FPSD-4316
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
18. First of all, the Single Judge of the DRC (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 November 2021 and submitted for decision
on 9 February 2022. 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.
19. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (August 2021 edition),
she is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Portuguese player and a Greek club.
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 (August 2021 edition), and
considering that the present claim was lodged on 17 November 2021, the August 2021
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 it 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 it will refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
Page 5
REF FPSD-4316
i. Main legal discussion and considerations
23. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that case at hand pertains a claim for outstanding amount
and a contractual penalty in the context of the settlement agreement concluded between the
Claimant and the Respondent on 15 October 2020.
24. Having analysed the documentation brought forward by the parties, the Single Judge first of
all pointed out that the Claimant acknowledged receipt of the outstanding remuneration
claimed, i.e. EUR 21,000, received on 21 December 2020. Therefore, the Single Judge
concluded that no amount remained outstanding arising from the instalments agreed upon
in the settlement agreement.
25. However, in light of the above and by considering that the Respondent failed to perform the
agreed instalments as established in the settlement agreement on time, the Single Judge held
that she has to establish if the penalty clause (art. 2b of the settlement) would apply.
26. In this context, the Single Judge recalled the content of the relevant clause: “In case the club
delays or does not pay two instalments in a row or two interpolated, and such delay or nonpayment exceeds ten days, all pending instalments become due with a penalty of 7,000 euros,
provided that the player has first sent a written notice to Aris FC setting a deadline of twenty
(20) days for the remedy of the breach (i.e. the delay of the payment or the non-payment)
and such deadline has elapsed without Aris FC remedying the breach”.
27. On account of above, considering the documentation on file, the Single Judge established
that more than two instalments of the settlement were delayed and the player served the
club with several default notices and granted time to cure the breaches, in total more than
20 days. Taking into account the aforementioned consideration, the Single Judge decided
that the penalty established in art. 2b of the settlement agreement was triggered.
28. In this regard, the Single Judge wished to recall the jurisprudence of the Football Tribunal that
penalty clauses, in principle, may be freely entered into by the contractual parties and may be
considered acceptable, in the event that the pertinent written clause meets certain criteria
such as proportionality and reasonableness. Accordingly, it shall be added that in order to
determine as to whether a penalty clause is to be considered acceptable, the specific
circumstances of the relevant case brought before the deciding body shall also be taken into
consideration.
29. In the specific case at hand and taking into account that the Respondent repetitively breached
its commitments towards the Claimant, the Single Judge was of the opinion that the penalty
of USD 7,000 is reasonable, proportionate and stays in line with the Players’ Status Chamber’s
jurisprudence.
Page 6
REF FPSD-4316
ii. Consequences
30. 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 amount of
USD 7,000, corresponding to the penalty agreed upon between the parties.
31. In accordance with the long-standing jurisprudence of the Football tribunal, no interest is
granted for the contractual penalty.
iii. Compliance with monetary decisions
32. 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.
33. 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.
34. 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.
35. 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.
36. 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.
Page 7
REF FPSD-4316
d. Costs
37. 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 Chamber decided that no procedural costs were to
be imposed on the parties.
38. 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.
39. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
Page 8
REF FPSD-4316
IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Hugo Filipe Goncalves Martins de Sousa, is partially accepted.
2.
The Respondent, Aris FC, has to pay to the Claimant, the following amount(s):
- EUR 7,000 as 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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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
Page 9
REF FPSD-4316
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
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
Page 10