Labour Disputes
Texto da decisão
REF. FPSD-10316
Decision of the
Dispute Resolution Chamber
passed on 2 August 2023
regarding an employment-related dispute concerning
the player Pep Biel Mas Jaume
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Stefano Sartori (Italy), member
André dos Santos Megale (Brazil), member
CLAIMANT:
Pep Biel Mas Jaume, Spain
Represented by Ruiz-Huerta Crespo Abogados
RESPONDENT:
FC Kobenhavn, Denmark
pg. 2
REF. FPSD-10316
I. Facts of the case
1. On 1 August 2019, the Danish club FC Kobenhavn (hereinafter: club or Respondent) sent the
Spanish player Pep Biel Mas Jaume (hereinafter: Claimant or player) an offer (hereinafter: the
Offer) which read as follows:
“Dear Mr Biel,
Subject to board approval, we would like to confirm the following financial terms in relation to an
employment contract with FC Copenhagen:
Contract period:
1 August 2019 – 30 June 2024
Salary:
Year 1: EUR 300,000 net per year inclusive pension and sport savings;
Year 2: EUR 325,000 net per year inclusive pension and sport savings;
Year 3: EUR 350,000 net per year inclusive pension and sport savings;
Year 4: EUR 375,000 net per year inclusive pension and sport savings;
Year 5: EUR 400,000 net per year inclusive pension and sport savings.
Collective bonus scheme:
Danish champions: App. 16,000 net EUR (squad solidarity)
UEFA Europa League group stage: App. 11,000 net EUR (performance based)
UEFA Champions League group stage: App. 66,000 net EUR (performance based)
We are looking forward to your response.”
2. On 2 August 2019, the Claimant and the Respondent concluded an employment contract
(hereinafter: Contract) valid as from the date of signature until 30 June 2024.
3. According to the Contract, the Respondent undertook to pay the Claimant his remuneration
in accordance with the “Addendum of the Contract” (hereinafter: the Addendum), which
stipulated as follows:
-
Monthly base salary 02.08.2019-30.06.2020: DKK 291,000;
Monthly base salary 01.07.2019-30.06.2021: DKK 315,000;
Monthly base salary 01.07.2019-30.06.2022: DKK 340,000;
Monthly base salary 01.07.2019-30.06.2023: DKK 367,000;
Monthly base salary 01.07.2019-30.06.2024: DKK 388,000.
-
The Player will participate in the Club’s collective bonus scheme. The scheme forms the
contractual basis of the Player’s performance bonus. The collective bonus agreement can be
changed giving three (3) months’ notice to lapse at the end of a season.
pg. 3
REF. FPSD-10316
4. The abovementioned Collective Bonus Scheme read inter alia as follows:
“The following terms and conditions apply to FC Copenhagen’s team in the Danish championship
(In Danish: 3F Superligatrup) for the season 2022/2023. In order to be covered by the collective
bonus agreement, it must be specified in the individual player’s employment contract. Players on
loan are not covered by the collective bonus agreement during the relevant six months suring
which the players are on loan.
A holiday allowance of 12.5% is added to all bonus payment and settled in accordance with the
provisions of the Danish Holiday Act.
A. Bonus for Danish championship
Winning the Danish championship triggers a total payment of up to DKK 3,900,000 distributed as
follows:
•
•
Official first team players in the fall season 2022 (enrolled in the team no later than by 5
September 2022) will split DKK 1,950,000 between them.
Official first team players in the spring season 2023 (enrolled in the team no later than by 5
February 2023) will split DKK 1,950,000 between them.
Payment of bonus will take place provided that the player is still on contract at the time of payment
on 30 June 2023.
B. UEFA Champions League bonus
3/3 bonus is in principle paid to all players in the starting line-up (1-11). Reserves (12-23) receive
1/3 bonus – this also applies to the spare goalkeeper. If a reserve is substituted during the game,
the reserve receives 2/3 bonus.
Bonus rates marked with * are not split according to the above procedure but constitute minimum
amounts.
Winner CL Play Off round per player per match (1 share = DKK 80,500)
Winner CL Play Off round not selected players per match
DKK 241,500.00*
DKK 5,600.00
CL group stages draws per match per player (1 share = DKK 10,625)
CL group stages wins per match per player (1 share = DKK 25,200)
DKK 30,795.00
DKK 75,600.00
Qualify for CL round of 16 per player (1 share = DKK 11,666)
Qualify for CL round of 16 not selected players
DKK 209,988.00
DKK 8,400.00*
pg. 4
REF. FPSD-10316
Qualify for EL round of 32 per player (1 share = DKK 5,132)
Qualify for EL round of 32 not selected players
DKK 92,376.00
DKK 5,600.00
If FC Copenhagen proceeds from the UCL group stages, a similar bonus arrangement will be made
for the knock-out matches in the spring of 2023.
Payment of the bonus will take place every six months on the condition that the player is still on
contract at the time of payment, 31 December 2022 and 30 June 2023 respectively.”
5. On 1 September 2022, the parties signed a mutual termination agreement (hereinafter: the
Termination Agreement). Said Termination Agreement stipulated that the Claimant will not be
entitled to any “share of the remaining contract amount” or “severance pay”.
6. On 6 October 2022, the Claimant put the Respondent in default and requested payment of
EUR 16,000 net as squad solidarity bonus for winning the Danish championship, as well as
EUR 66,000 for qualifying to the UEFA Champions League. No deadline was granted.
7. On 28 October 2022, the Respondent replied to the Claimant, stating that the Claimant’s
bonus payments are regulated by the Addendum to the Contract, and that thereunder he is
not entitled to any further amounts as he signed the Termination Agreement and thus was
not a part of the squad when the collective bonuses became payable. Furthermore, by
signing the Termination Agreement, the Respondent argued that the Claimant waived his
right to request such bonuses in the future.
8. On 2 November 2022, the Claimant replied to the above correspondence, insisting on the
amounts claimed in the first default notice being payable.
9. On 4 November 2022, the Respondent sent a further correspondence, stating that it believes
there is a misunderstanding, as the Claimant was paid the bonuses relating to the 2021/2022
season, and that he is not entitled to any bonuses related to the season 2022/2023.
10. On 7 November 2022, the Claimant indicated that there is no misunderstanding, reiterated
that he is entitled to the above amounts, and mentioned that he was never handed a copy
of the collective bonus scheme when he signed the Contract.
11. At an unclear date, the Claimant put the Respondent in default for the total amount of
EUR 112,300, and granted a deadline of 10 days to remedy the alleged breach.
pg. 5
REF. FPSD-10316
II. Proceedings before FIFA
12. On 23 May 2023, the Claimant lodged a claim against the Respondent in front of FIFA. A short
summary of the parties’ submissions is contained below.
a. Position of the Claimant
13. The Claimant requested overdue payables in the amount of EUR 112,300 net, corresponding
to EUR 66,000 for qualifying to the UEFA Champions League group stage, as well as
DKK 345,000 (or approx. EUR 46,300) corresponding to alleged “collective bonuses”, the
composition of which was not specified.
14. In his claim, the Claimant briefly argued that he was entitled to receive conditional amounts
based on the Contract, the collective bonus scheme and the Addendum to the Contract.
15. The Claimant specified that said Addendum allegedly stipulated that he is entitled to receive
the following collective bonus payments:
“Collective bonus scheme:
Danish champions: App. 16,000 net EUR (squad solidarity)
UEFA Europa League group stage: App. 11,000 net EUR (performance based)
UEFA Champions League group stage: App. 66,000 net EUR (performance based)”
16. The Claimant also outlined having put the Respondent in default, to no avail.
17. Therefore, the Claimant requested the above amount, as well the imposition of a sanction
under art. 12bis of the Regulations.
18. Lastly, the Claimant requested EUR 7,000 as legal costs.
b. Reply of the Respondent
19. In its reply, the Respondent outlined that it is not liable to pay the Claimant any overdue
payables. It was of the opinion to have fulfilled its financial obligations before the latter.
20. More specifically, the Respondent outlined that all remuneration due to the Claimant is
described in the Contract, the Addendum and the Collective Bonus Scheme. The Respondent
specified that the Offer, which the Claimant allegedly erroneously refers to as “addendum”,
does not constitute part of the Contract.
21. Furthermore, the Respondent specified that it paid the bonuses under the Collective Bonus
Scheme to the Claimant for the season 2021/2022, and that no amounts for the season
2022/2023 are due, since he had to be part of the squad on 5 September 2022 and already
terminated the Contract mutually on 1 September 2022.
pg. 6
REF. FPSD-10316
22. Lastly, the Respondent described that the Termination Agreement specifically mentioned
that no further amounts are payable and that no severance pay was foreseen.
23. Therefore, the Respondent argued that the claim should be rejected.
c. Replica of the Claimant
24. In his replica, the Claimant outlined that the Offer sent on 1 August 2019 was accepted when
the Claimant signed the Contract the following day, making it “executive”.
25. Furthermore, in case the Tribunal would find that the Claimant is not entitled to receive the
qualification bonus described in the Offer, the latter went on to argue that he is at least
entitled to claim the amounts for the 2022/2023 season described in the Collective Bonus
Scheme.
26. The Claimant specified that, thereunder, he participated in both qualifying matches
corresponding to the “per-player-per-match” bonus, resulting in a total amount of
DKK 483,000 net, or two times DKK 241,500 net.
27. Therefore, the Claimant amended his request for relief and claimed EUR 64,850 net under
this contractual concept (as opposed to EUR 46,300 before).
28. The Claimant specified that the date contained in the Collective Bonus Scheme is irrelevant,
and that he participated in the qualification of matches, thereby making him an integral part
of the achievement of said collective requirement and entitling him to claim the consequent
bonus.
29. The Claimant also wished to point out that, by playing in the qualification match, the
condition for the collective bonus payment was met, and that there was no need to wait for
the actual qualification date or the date specified in the Bonus Scheme. The Claimant quoted
CAS and FIFA jurisprudence in this respect.
30. Lastly, the Claimant amended his request to include interest.
d. Duplica of the Respondent
31. In its duplica, the Respondent reiterated that the Offer is not an integral part of the Contract
and was superseded by the financial terms contained in the latter document.
32. Furthermore, the Respondent pointed out that the Claimant did not contest having received
the amounts for the season 2021/2022, and reiterated that he is not entitled to receive the
bonuses contained in the Collective Bonus Scheme for 2022/2023.
pg. 7
REF. FPSD-10316
33. The Respondent also wished to emphasise that the Claimant failed to corroborate his
unexpected amendment to the claim and the previous failure to specify which bonus
payments were intended.
34. In any case, the Respondent stated that participating in the qualification matches for the
Champions League bears no influence on the entitlement to claim any bonuses arising from
the Collective Bonus Scheme. In this respect, the Respondent emphasised that the Bonus
Scheme specifically required the Claimant to be part of the squad after
31 December 2022, thus as an incentive to stay for the remainder of the season, that such
requirement is clearly foreseeable, and that the Claimant is now “cherry picking” from the
Bonus Scheme.
35. Therefore, the Respondent once again requested the claim to be dismissed.
pg. 8
REF. FPSD-10316
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
34. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) 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 23 May 2023 and submitted
for decision on 2 August 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.
35. Subsequently, the members of the Chamber 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 (May 2023 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 player from Spain
and a club from Denmark.
36. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (May 2023 edition), and
considering that the present claim was lodged on 23 May 2023, the March 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
37. 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).
c. Merits of the dispute
38. 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.
pg. 9
REF. FPSD-10316
i. Main legal discussion and considerations
39. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the Claimant’s
entitlement to certain conditional bonus payments under the Contract.
40. In this context, the Chamber acknowledged that it its task was to determine whether, based
on the various contractual provisions and agreements in place between the parties, as well
as the evidence on file, whether or not the Claimant satisfied the conditions set out in order
to hold the liable the Respondent to pay the conditional amounts presently claimed, or
whether the latter had the right to withhold payment as the relevant conditions had not
been met.
41. Having established the above, the Chamber revisited the Claimant’s request for relief,
which stated that he is entitled to receive the following conditional bonus payments:
-
EUR 66,000 net, corresponding to an alleged bonus for qualifying for the UEFA
Champions League;
EUR 64,850 net, or DKK 483,000 net, corresponding to the amounts allegedly due
under the Collective Bonus Scheme for the season 2022/2023.
42. In respect of the above amounts, the Chamber wished to firstly point out that they did not
originate from the same contractual instrument; whereas the bonus in the amount of
DKK 483,000 net was contained in the Contract by virtue of the collective bonus scheme,
the alleged UEFA Champions League qualification bonus in the amount of
EUR 66,000 net was – as subsequently admitted by the Claimant in his second submission
– part of the Offer sent on 1 August 2019.
43. With this important clarification established, the Chamber moved on to consider the
Claimant’s entitlement to each respective amount sought, starting with the UEFA
Champions League bonus in the amount of EUR 66,000 net as per the Offer dated
1 August 2019.
44. In respect of said amount, the Chamber recalled Claimant’s line of argument that the Offer
formed an integral part of the Contract, and that the Claimant, through the Offer, had a
legitimate expectation to receive such amount upon the potential accomplishment of the
relevant condition.
45. In consideration of said argument, the Chamber considered various points of particular
significance. Firstly, it observed that the Offer itself was “subject to board approval” and
that, as with said bonus, the amounts for the Claimant’s salary were different to those
which were contained in the final and binding Contract. Notwithstanding said fact, the
Chamber noted that the Claimant (at least based on the evidence contained on file)
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REF. FPSD-10316
expressed no objection to the amended figures which were eventually contained in the
Contract, suggesting that the latter document – and only the latter document – represented
the parties’ mutual intention.
46. Moreover, the Chamber considered it important to note that the Contract specifically
outlined that all remuneration – including salaries and bonus payments – are outlined in
the Addendum and the Collective Bonus Scheme. No mention was made in respect of the
Offer, further suggesting that it did not form an integral part of the Contract.
47. Finally, the Chamber wished to emphasise the Contract, by its nature, replaced the Offer
in terms of the parties’ understanding of their mutual rights and obligations, as it had been
effectively ratified, and the parties had engaged in an employment relationship on its basis.
48. Thus, and keeping the abovementioned points in mind, the Chamber firstly established
that the Offer did not form part of the Contract, which was the basis of the parties’
employment relationship. Consequently, and with no contractual basis to claim said
amount, the Claimant was held not to be entitled to an alleged UEFA Champions League
qualification bonus of EUR 66,000.
49. Subsequently, the Chamber moved to consider the bonus payments contained in the
Collective Bonus Scheme for the season 2022/2023, to which the Claimant alleged to be
entitled.
50. First of all, the Chamber wished to stress that the Termination Agreement did not
constitute a waiver of any amounts being presently claimed. Whereas said agreement
stipulated that the Claimant is not entitled to any “share of the remaining contract amount”
or “severance pay”, any potential conditional amounts claimed under the present
proceedings represent amounts that would already have fallen due. Thus, the potential
entitlement of the Claimant to these amounts shall be determined in accordance with the
specific circumstances of the present case.
51. The Chamber wished to revisit the relevant provision contained in the Collective Bonus
Scheme, based on which the Claimant built his argument:
“Winner CL Play Off round per player per match (1 share = DKK 80,500) → DKK 241,500
Winner CL Play Off round not selected players per match → DKK 5,600
Payment of bonus will take place every six months on the condition that the player is still on
contract at the time of payment, 31 December 2022 and 30 June 2023 respectively.”
52. With the above clause in mind, the Chamber revisited its own longstanding jurisprudence,
in accordance with which, based on the specific circumstances of the respective case and
where adequately substantiated by the parties, it may uphold clauses specifying certain
conditions in order to collect a due payment.
pg. 11
REF. FPSD-10316
53. In this context, the Chamber was able to identify two key conditions for triggering the
bonus payment: on one hand, participating in the relevant match(es) for which the bonus
of DKK 241,500 is foreseen – the fulfilment of which is presently not in dispute – and
secondly, being part of the squad at a defined date – namely 31 December 2022 – when
the payment would be distributed.
54. The Chamber noted that the Respondent highlighted the reason for said wording
contained in the clause, namely in order to incentivise players to remain with the club from
the beginning until the end of the season.
55. Having established this, the Chamber referred to the jurisprudence quoted by the Claimant
in his submission (CAS 2018/A/5882), and wished to point to the following section
contained therein:
“66. (…) For incentive schemes of this kind to provide the necessary motivation, those striving
to achieve this goal must be able to expect that payment of the bonus must be certain upon
the obtention of the result. Presumably the higher the expected payment is, the greater the
degree of motivation to achieve the identified goal. It is therefore essential that the objectives
be clearly defined, and that the expected reward for reaching it also be clear.”
56. Said award, more specifically the highlighted section, referred to the principles of
“predictability” and “clearly defining objectives”, and that expected rewards for reaching
these objectives are equally as clear. With these principles in mind, the Chamber opined
that the condition(s) for obtaining the disputed bonus were clearly defined in the Collective
Bonus Scheme, notably that the player’s presence at the club on said date is a condition to
be entitled to the corresponding bonus. The Chamber considered that this reflects the
nature of the bonus, being “collective” (as also indicated by its nomenclature), rather than
individual and performance based, encompassing the premise that the players which aim
to benefit from the Bonus Scheme must be part of the team for the stipulated time-period.
57. Moreover, and for completeness’ sake, the Chamber wished to point out that the award
quoted by the Claimant concerned the non-payment of a conditional bonus due to a lack
of funds by the respective club, rather than the contractual interpretation of a clause
potentially giving rise to such obligation, thus rendering the outcome of said award of
limited usefulness in the present case.
58. Lastly, and likewise for completeness’ sake, the Chamber emphasised that the decision of
the Single Judge of the DRC in FPSD-9067, quoted by the Claimant, was also deemed of
limited relevance in the present matter, given that the contract in said case did not contain
any additional requirements, such as the player’s presence at a certain time in the season,
which was the case in the Contract at the basis of the present dispute.
pg. 12
REF. FPSD-10316
59. Therefore, and conclusively, the Chamber held that the Claimant did not meet the
requirements set out for the obtention of the bonus of DKK 483,000, as he was not part of
the Respondent’s squad on 5 September 2022.
60. In light of the above, and with no entitlement to any of the sought amounts being
established, the Chamber decided to reject the Claimant’s petition in its entirety.
d. Costs
61. The Chamber 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.
62. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
63. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-10316
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pep Biel Mas Jaume, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-10316
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. 15