Labour Disputes
Texto da decisão
REF FPSD-4096
Decision of the
Dispute Resolution Chamber
passed on 16 December 2021
regarding an employment-related dispute concerning the player Garry
Mendes Rodrigues
BY:
Frans de Weger (Netherlands), Chairperson
Angela Collins (Australia), member
Daan de Jong (Netherlands), member
CLAIMANT:
Garry Mendes Rodrigues, Netherlands
Represented by Oktay Duzgun
RESPONDENT:
Ittihad FC, Saudi Arabia
Represented by Ali Abbes & Mohamed Rokbani
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I.
Facts of the case
1.
On 5 January 2019, the Dutch player, Garry Mendes Rodrigues (hereinafter: the Claimant or
player), and the Saudi club, lttihad FC (hereinafter: the Respondent) signed an employment
contract valid as from as from the date of signature until 30 June 2023.
2.
On 25 February 2021, the parties extended the contractual relationship until 30 June 2024.
3.
On 31 August, the club terminated the contract with the player.
4.
On 17 September 2021, the parties signed a settlement agreement, according to which the
Respondent undertook to pay the Claimant the total amount of EUR 8,500,000, as follows:
- EUR 2,500,000 within 14 days after signing the settlement agreement;
- EUR 5,500,000 in 24 payments of EUR 229,166.66 falling due at the end of each month
between January 2022 and December 2023;
- EUR 500,000 in 4 payments of EUR 125,000 falling due at the end of each month
between January 2024 and April 2024.
5.
Art. 3.2 of the settlement agreement establishes: "If the club fails to pay any of the amounts
stipulated in the present clause, the player must serve a notice in writing and give the club
15 days to cover the pending amount. If the club does not pay the pending amount within
the granted deadline, the player has the right to submit to FIFA and request immediate
payment of the total of the settlement agreement (EUR 8,750,000) plus additionally a
payment of EUR 1,500,000 as penalty (minus the payments already made by the club under
the settlement agreement) to be paid in one lump-sum payment".
6.
On 2 October 2021, the Claimant put the Respondent in default and requested payment of
EUR 2,500,000, corresponding to the first instalment of the settlement agreement, within 15
days.
II. Proceedings before FIFA
7.
On 25 October 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
8.
In his claim, the Claimant requested payment of EUR 10,250,000 plus "interest" in accordance
with the settlement agreement.
9.
The player held that his default notice remained unanswered and no amount was paid,
which is why deems to be entitled to the claimed in amount in accordance with art. 3.2. of
the in amount in accordance with art. 3.2. of the settlement agreement.
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b. Position of the Respondent
10. In its reply, the Respondent held that it made a partial payment of EUR 870,000 to the
Claimant on 26 October 2021.
11. The club held having acted in good faith since it "tried to pay the first instalment". In this
regard, the Respondent referred to the financial crisis which it faces at the moment.
12. Furthermore, the Respondent held that the penalty clause shall not be taken into account,
since it would only apply if it failed to remit "the entire amount" established, which is not
the case due the partial payment.
13. Moreover, the Respondent argued that art.12bis RSTP is not applicable as the amount was
not overdue yet.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 25 October 2021 and submitted for decision
on 16 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.
15. 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 (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 Dutch player and a
Saudi club.
16. 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 (August 2021 edition), and
considering that the present claim was lodged on 25 October 2021, the August 2021 edition
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
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b. Burden of proof
17. 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
18. 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
19. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties dispute the consequences arising from a settlement
agreement.
20. In this context, the Chamber acknowledged that its task was to establish if the Claimant is
entitled to the claimed amounts in relation to the settlement agreement as well as the penalty.
21. In this framework, the members of the Chamber started to analyse the content of the
settlement agreement and noted that it remained undisputed that the first instalment of the
settlement agreement remained unpaid within the notice given by the Claimant.
22. Taking into account the content of art. 3.2. of the settlement agreement, the total amount
of EUR 8,750,000 became due since the first instalment remained unpaid as established
above.
23. The DRC further noted that a partial payment of EUR 870,000 was remitted by the
Respondent and therefore concluded that the Claimant is entitled to the residual amount of
EUR 7,880,000.
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24. Subsequently, the Chamber focussed its attention on the penalty clause contained in art. 3.2
of the settlement agreement, which established that: “[…] If the club does not pay the
pending amount within the granted deadline, the player has the right to submit to FIFA and
request immediate payment of the total of the settlement agreement (EUR 8,750,000) plus
additionally a payment of EUR 1,500,000 as penalty (minus the payments already made by
the club under the settlement agreement) to be paid in one lump-sum payment.”
25. The DRC recalled 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.
26. Accordingly, the members of the Chamber 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.
27. In the case at hand, the DRC concluded that the amount of the penalty (EUR 1,500,000),
corresponds to approx. 17% of the outstanding amount and that such penalty, therefore,
appears to be reasonable and proportional. Therefore, the Chamber decided to grant the
penalty of EUR 1,500,000.
ii. Consequences
28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the DRC decided that the Respondent is liable to pay to the Claimant the amount of EUR
7,880,000, corresponding to the residual amount due from the settlement agreement, as
well as the amount of EUR 1,500,000, corresponding to the penalty agreed upon between
the parties.
29. In addition, 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 at the rate
of 5% p.a. on the amount of EUR 7,880,000 as from 18 October 2021 until the date of
effective payment.
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iii. Compliance with monetary decisions
30. Finally, taking into account the applicable Regulations, the Chamber 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.
31. In this regard, the DRC 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.
32. Therefore, bearing in mind the above, the DRC 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.
33. 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.
34. 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. 24 par. 8 of the
Regulations.
d. Costs
35. 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.
36. 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.
37. 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, Garry Mendes Rodrigues, is partially accepted.
2.
The Respondent, Ittihad FC, has to pay to the Claimant, the following amount(s):
- EUR 7,880,000 plus 5% interest p.a. as from 18 October 2021 until the date of effective
payment;
- EUR 1,500,000 as penalty fee.
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
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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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