Labour Disputes
Texto da decisão
REF. FPSD-14418
Decision of the
Dispute Resolution Chamber
passed on 6 June 2024
regarding an employment-related dispute concerning
the player Ivan Ricardo Neves Abreu Cavaleiro
BY:
Michele COLUCCI (Italy), Single Judge of the DRC
CLAIMANT:
Ivan Ricardo Neves Abreu Cavaleiro, Portugal
Represented by Nazım Burçin Çelen
RESPONDENT:
Alanyaspor, Turkey
Represented by Sami Dinc
pg. 2
REF. FPSD-14418
I. Facts of the case
1.
On 7 September 2022, the Portuguese player, Ivan Ricardo Neves Abreu Cavaleiro
(hereinafter: Claimant or player) and the Turkish club, Alanyaspor (hereinafter: club or
Respondent) concluded an employment contract (hereinafter: contract) valid as from 7
September 2022 until 31 May 2023.
2.
On 3 July 2023, the player lodged a claim against the club for outstanding remuneration in
front of FIFA.
3.
On 17 August 2023, the parties concluded a settlement agreement, according to which the
Respondent undertook to remit the following amounts to the Claimant:
-
EUR 68,000 on 31 August 2023;
EUR 68,000 on 30 September 2023;
EUR 68,000 on 31 October 2023;
EUR 68,000 on 30 November 2023;
EUR 68,000 on 31 December 2023.
4.
Art. 4 of the settlement agreement establishes: “In case Alanyaspor fails to pay any of the
above-mentioned instalments on the above-mentioned due dates, the player shall send a written
notice to Alanyaspor in order to give Alanyaspor 10 (ten) days for the payment of the relevant
instalment. If Alanyaspor fails to remedy the default within 10 days from receipt of a default
notice in writing, Alanyaspor shall be bel held responsible for the payment of:
- an additional fixed penalty corresponding to 7,5% (seven and half percent) of the due
and unpaid of such instalment. For the avoidance of doubts, the Parties confirm that
this Penalty is cumulative and may be due in connection with several instalments;
- plus an interest of 5% (five percent) per year until full payment of such instalment.”
5.
On 19 October 2023, the Claimant put the Respondent in default and requested payment
of EUR 68,000, corresponding to the second instalment of the settlement agreement,
setting a 10 days’ time limit in order to remedy the default.
6.
On 7 November 2023, the Respondent remitted a payment of EUR 68,000 (2nd instalment)
to the Claimant.
7.
On 8 November 2023, the Claimant put the Respondent in default and requested payment
of EUR 68,000, corresponding to the third instalment of the settlement agreement, setting
a 10 days’ time limit in order to remedy the default.
8.
On 5 December 2023, the Claimant put the Respondent in default and requested payment
of EUR 68,000, corresponding to the fourth instalment of the settlement agreement, setting
a 10 days’ time limit in order to remedy the default.
pg. 3
REF. FPSD-14418
9.
On 15 December 2023, the Respondent remitted a payment of EUR 68,000 (4th instalment)
to the Claimant.
10. On 25 March 2024, the Claimant put the Respondent in default and requested payment of
EUR 68,000, corresponding to the third instalment of the settlement agreement, setting a
10 days’ time limit in order to remedy the default.
II. Proceedings before FIFA
11. On 18 April 2024, 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
12. In his claim, the Claimant requested payment of the following monies:
- EUR 136,000 as outstanding instalments (3rd and 5th instalment) plus 5% interest p.a.
- EUR 15,300 as penalty payments (for 2nd, 3rd and 5th instalment; 3x EUR 5,100), plus
5% interest p.a.
13. In this regard, the player argued that the club failed to remit two instalments and that he
is entitled to penalties for three late payments, in accordance with art. 4 of the settlement
agreement.
b. Position of the Respondent
14. In its reply, the club rejected the claim.
15. The Respondent pointed out that it complied with the payment of the 2nd instalment
within the agreed grace period, but that due to a problem with the bank the payment was
remitted at a later stage.
16. Furthermore, the club held that the cumulative penalties are “excessive” while it pointed out
that it complied with the fourth instalment.
pg. 4
REF. FPSD-14418
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge (hereinafter also referred to as 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 18 April 2024 and submitted for decision on 6
June 2024. 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.
18. 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 (June 2024), he
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player and a club.
19. 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 (June 2024 edition), and
considering that the present claim was lodged on 18 April 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
20. 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
21. His 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.
pg. 5
REF. FPSD-14418
i. Main legal discussion and considerations
22. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for outstanding amounts arising from a settlement agreement.
23. In this context, the Single Judge acknowledged that his task was to decide if the player is
entitled to the claimed amounts.
24. The Single Judge duly noted that according to the player, the club failed to remit two
instalments of the settlement agreement and that he argued being entitled to three penalty
payments in accordance with art. 4 of the settlement agreement.
25. The Respondent argued that the second instalment was paid within the grace period, but
only remitted at a later stage due to a problem with the bank. Further, it held that the
cumulative penalties are excessive.
26. The Single Judge noted that in the case at hand the Respondent bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties.
27. In this framework, the Single Judge started to analyse the argumentation of the
Respondent, according to which the second instalment was paid late due to a mistake of
the bank. The Single Judge pointed out that the club failed to submit any documents
regarding any problem with the bank. Therefore, the Single Judge decided that such
argumentation cannot be followed and he concluded that the second instalment was paid
after the “grace period”.
28. On account of the above, the Single Judge decided to award the player the third and fifth
instalment of the settlement agreement (2x EUR 68,000), plus interest of 5% p.a. as of the
respective due dates.
29. Furthermore, the Single Judge turned his attention to the penalty clause established in art.
4 of the settlement agreement. 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.
pg. 6
REF. FPSD-14418
30. 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 7.5% of each outstanding instalment is reasonable, proportionate and stays
in line with the Players’ Status Chamber’s jurisprudence. Therefore, based on art. 4 of the
settlement agreement, a total penalty of EUR 15,300 (3x EUR 5,100, which is 7.5% of 68,000)
is awarded to the player.
31. However, in accordance with the Chamber’s jurisprudence, the Single Judge decided that
no interest shall be granted on penalties.
ii. 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.
pg. 7
REF. FPSD-14418
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 Single Judge 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.
pg. 8
REF. FPSD-14418
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ivan Ricardo Neves Abreu Cavaleiro, is partially accepted.
2.
The Respondent, Alanyaspor, must pay to the Claimant the following amount(s):
- EUR 68,000 plus 5% interest p.a. as from 1 November 2023 until the date of effective
payment;
- EUR 68,000 plus 5% interest p.a. as from 1 January 2024 until the date of effective
payment;
- EUR 15,300 as contractual 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, 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.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-14418
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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