Labour Disputes
Texto da decisão
REF FPSD-8087
Decision of the
Dispute Resolution Chamber
passed on 14 December 2022
regarding an employment-related dispute concerning the player Fabio
Alexandre Cruz Martins
BY:
Iñigo RIESTRA, Mexico
CLAIMANT:
Fabio Alexandre Cruz Martins, Portugal
Represented by José Duarte Reis
RESPONDENT:
Club Karmiotissa Polemidion, Cyprus
Represented by 14 Sports Law
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REF FPSD-8087
I. Facts of the case
1.
On 25 July 2022, the Portuguese player, Fabio Alexandre Cruz Martins (hereinafter: the
player or the Claimant) and the Cypriot club, Karmiotissa Polemidion (hereinafter: the club
or the Respondent) concluded a termination agreement in connection with the
employment relationship previously maintained between them (hereinafter: the
termination agreement).
2.
Under the termination agreement, the club undertook to pay the player the total amount
of EUR 3,000 by 31 August 2022.
3.
On 8 September 2022, the player put the club in default and requested payment of the
EUR 3,000 within 15 days.
4.
On 28 September 2022, the player sent the club a reminder of the abovementioned
payment, to no avail.
5.
On 3 November 2022, the player lodged a claim against the club in front of FIFA and
requested to be awarded the same EUR 3,000 according to the termination agreement,
plus interest of 5% p.a. as from the due date until the date of effective payment.
6.
On 25 November 2022, the club filed its reply to the player’s claim. In this respect, it
argued that the email address used by the player for the notices does not exist, hence
“the player initiated legal remedies before [FIFA] without any prior notice and without any effort
to amicably settle the present dispute”. As a consequence, the club requested that the claim
of the player be rejected or, alternatively, that art. 12bis of the FIFA Regulations on the
Status and Transfer of Players (RSTP) should not be applicable in the case at hand.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
7.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also 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 3
November 2022 and submitted for decision on 14 December 2022. 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.
8.
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 par. 1 lit. b) of
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the FIFA RSTP (October 2022 edition), he 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 Cypriot club.
9.
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 FIFA RSTP (October 2022 edition), and considering that the present claim
was lodged on 3 November 2022, the July 2022 edition of said regulations (hereinafter:
the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
10. 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
11. The 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
12. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains to a claim of a player against a club for
outstanding remuneration.
13. In this context, the Single Judge highlighted that it remained undisputed between the
parties that the amount sought by the player was not paid by the club within the deadline
stipulated in the termination agreement. In contrast, despite not challenging the debt per
se, the club argued that the claim of the player should be rejected because the
Respondent was not properly put in default.
14. In light of the above and while considering the dissent between the parties, the Single
Judge established that the player’s claim is both contractually based and supported by
documentary evidence. As such, he pointed out that it was for the club to honour its
financial duties regardless of the receipt of any reminder and/or notice, insofar as its
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default arises from the breach of the termination agreement and is not made subject to
any further proactive step to be taken by the player.
15. Consequently, and moreover since the club failed to advance any evidence in support of
its argumentation, the Single Judge decided that its position should be rejected.
16. It followed from the above, in the Single Judge’s view, that the player should be awarded
the outstanding remuneration sought (i.e., EUR 3,000) on the basis of the general legal
principle of pacta sunt servanda. Additionally, the Single Judge also decided to award the
player 5% interest p.a. over the aforementioned amount as from its due date (i.e., 1
September 2022) until the date of effective payment.
ii. Compliance with monetary decisions
17. 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.
18. 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.
19. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
20. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
21. 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.
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d. Costs
22. 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.
23. 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.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Fabio Alexandre Cruz Martins, is accepted.
2.
The Respondent, Karmiotissa Polemidion, has to pay to the Claimant the following
amount:
- EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 September
2022 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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