Labour Disputes
Texto da decisão
REF. FPSD-13257
Decision of the
Dispute Resolution Chamber
passed on 12 August 2024
regarding an employment-related dispute concerning the player
Kevin Alexander Palacios Hernandez
COMPOSITION:
Martín Auletta (Argentina), Deputy Chairperson
Alexandra Gomez Bruinewoud (Uruguay), Member
Jorge Gutiérrez (Costa Rica), Member
CLAIMANT:
Kevin Alexander Palacios Hernandez, Venezuela
Represented by Ms Melanie Schärer
RESPONDENT:
Lierse Kempenzonen, Belgium
Represented by Mr Jesse de Preter
pg. 2
REF. FPSD-13257
I. Facts of the case
1.
On 12 August 2023, the Belgian club Lierse Kempenzonen (hereinafter: the Respondent or
Club) completed its first official match of the season.
2.
At an unspecified date, the Respondent allegedly made an offer to the Venezuelan player
Kevin Alexander Palacios Hernandez (hereinafter: the Claimant or Player) through the
“sponsorship and player acquisition” manager of the Respondent, who is allegedly also
responsible for the Dutch club Roda JC and the Belgian club RAAL La Louvière.
3.
On 9 September 2023, the Claimant travelled from Bogota to Frankfurt.
4.
On 10 September 2023, the Claimant flew from Frankfurt to Paris.
5.
On 12 September 2023, the Dutch club Roda JC submitted an application to the Belgian
immigration service for a visa waiver, stating that the Claimant had been “hired as an
international reinforcement”.
6.
At an unspecified date, the Claimant was allegedly instructed by the Respondent (via
WhatsApp message) to train with Roda JC for three days as there was nobody from the Club
present, given that the pre-season was not due to start until the following week.
7.
On 19 September 2023, the Claimant travelled from Kerkrade to Antwerp by train.
8.
At an unspecified date, the Claimant and the Respondent allegedly signed a first
employment contract, dated 30 September 2023 and with a monthly remuneration of
EUR 2,800.
9.
At an unspecified date, the Claimant visited the facilities of the Respondent.
10. On 22 September 2023, the Claimant allegedly signed a revised employment contract with
the Respondent valid as from the date of signature until 30 June 2025 (hereinafter: the
Contract).
11. In accordance with the Contract, the Respondent allegedly undertook to pay to the
Claimant inter alia a monthly remuneration of EUR 4,850, amounting to a total value of the
Contract of EUR 116,400, as well as to provide the Claimant with “food, accommodation and
extra expenses that the player may need during his stay”.
12. Subject to art. 6 of the Contract, the parties agreed as follows:
“These are the responsibilities of THE CLUB 1) Pay for THE PROFESSIONAL FOOTBALLIST's tickets
to Belgium, for his presentation to the discipline of THE CLUB, and must return him to his country
of origin at the end of his contract. The obligations of THE PROFESSIONAL FOOTBALLER are: 1)
pg. 3
REF. FPSD-13257
Request written authorization from THE CLUB to leave the country, 2) know and respect Belgian
immigration regulations.”
13. Moreover, pursuant to art. 31 of the Contract, the parties agreed as follows:
“The acquisition of the player's sports rights will have a single value of 200,000 Euros to which
the legal taxes of the country where this contract is signed must be applied.”
14. By correspondence dated 21 November 2023, the Claimant sent a letter to the Respondent
with the following demands:
“- The immediate integration of Kevin Palacios into all club activities and commitments, in
accordance with the terms of the contract.
- The immediate provision of a suitable accommodation (cf. third clause of the employment
contract).
- The payment of the amount of EUR 200,000 for the player’s sports rights (i.e., the contract signing
fee), which has been due since 3 October 2023, in accordance with clause thirty-one of the
employment contract.
- The payment of the amount of EUR 9,700 for the two outstanding months of salary for the period
of 22 September until 21 November 2023 (cf. third clause of the employment contract).
- The reimbursement of all travel expenses incurred by Kevin Caicedo in connection with his
incorporation into the club of EUR 2,004.99 (COP 8,186,150 or EUR 1,895.99 plus EUR 109; cf. sixth
clause of the employment contract; see attached payment receipts).”
15. On 8 December 2023, the Claimant flew back to Colombia.
16. On 4 January 2024, the Claimant terminated the Contract.
17. On 15 January 2024, the Claimant signed a new employment contract with a different club.
II. Proceedings before FIFA
18. On 4 January 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
19. According to the Claimant, the Respondent severely breached the Contract by withholding
any remuneration for over three months and by excluding the Claimant from all club
pg. 4
REF. FPSD-13257
activities, effectively preventing him from working. Notably, the Club allegedly did not
properly execute the employment contract concluded on 22 September 2023.
20. Therefore, as the Respondent unlawfully failed to comply with the contractually agreed
terms, the Claimant terminated the Contract with just cause in accordance with articles 14
and 14bis of the FIFA Regulations and is entitled to receive all outstanding remuneration
and the reimbursement of his train and flight ticket costs, as well as compensation for
breach of contract.
21. Based on the foregoing, the Player understands that the Club breached the Contract
without just cause and requested for the following relief to be granted:
“1) The Respondent shall be ordered to pay the Claimant the amount of EUR 200,000 (two
hundred thousand euros) net as outstanding signing fee, plus interest at the rate of 5% per year
over said amount as of 10 October 2023 until the date of effective payment.
(2) The Respondent shall be ordered to pay the Claimant the amount of EUR 16,005 (sixteen
thousand and five euros) net as outstanding salaries for the contractual period of 22 September
until 31 December 2023, plus interest at the rate of 5% per year as follows:
• Over the amount of EUR 1,455, as of 1 October 2023 until the date of effective payment
• Over the amount of EUR 4,850, as of 1 November 2023 until the date of effective payment,
• Over the amount of EUR 4,850, as of 1 December 2023 until the date of effective payment and
• Over the amount of EUR 4,850, as of 1 January 2024 until the date of effective payment.
(3) The Respondent shall be ordered to reimburse the Claimant the amount of EUR 2,718.56 (two
thousand seven hundred and eighteen euros and fifty-six cents) net for train and flight ticket
costs, plus interest at the rate of 5% per year over said amount from the date of termination of
the present employment contract, i.e., from 4 January 2024, until the date of effective payment.
(4) The Respondent shall be ordered to pay the Claimant the amount of EUR 100,395 (one
hundred thousand three hundred and ninety-five euros) net as compensation for the breach of
contract, plus interest at the rate of 5% per year over said amount from the date of termination
of the present employment contract, i.e., from 4 January 2024, until the date of effective
payment.”
b. Position of the Respondent
22. In its reply, the Respondent argued that the identity of the Claimant has not been proven
and mentioned that there is not an actual signature on the documents, only an abbreviated
name.
pg. 5
REF. FPSD-13257
23. The Club claims that the parties never signed an employment contract and that no offer
was communicated by the Club to the Player, and that the Player failed to provide any proof
of such offer.
24. The Club further argued that there has been no correspondence between the parties,
mentioning that “there would surely be at least a text message or some email(s) about the offer
of such important contracts and there is not even the slightest evidence of any communication
at all in the days and weeks preceding the alleged signing of the forged contracts.”
25. According to the Club, the Player would have required a visa for his stay “but [he did not]
provide any evidence of such visa and any evidence of an exemption from work permit in
Belgium.”
26. Moreover, the Club mentioned that the story of the Claimant does not include any detail
on his stay in Belgium from 11 September 2023 to early December 2023.
27. The Club argued that the Contract was forged based on the various discrepancies it
highlighted.
28. Consequently, the Club requested the following relief:
-
To declare the claimant’s claim inadmissible;
To declare the claimant’s claim unfounded;
To order the claimant to pay to the defendant 100,000.00 EUR in compensation for
moral and material damages;
To order the claimant to pay any costs related to these proceedings.
c. Replica of the Claimant
29. Upon request of the Dispute Resolution Chamber, the Claimant was invited to provide
comments as to the Respondent’s position, as well as an original copy of the Contract at
the basis of the present dispute.
30. The Claimant dismissed the argumentation that his identity was not duly proved,
submitting a copy of his passport via email (for confidentiality purposes), as well as excerpts
from the online platform transfermarkt.de.
31. As to the Claimant’s whereabouts prior to the commencement of the Contract, it was
argued that he had trained with the Dutch club Roda JC to maintain his fitness level.
32. Thereafter, he had travelled to Antwerp to sign the Contract with the Respondent. The
Claimant emphasized that he was advised to stay in Antwerp due to the city having more
amenities, and upon signature of the Contract, he would receive an apartment in Lier.
pg. 6
REF. FPSD-13257
33. The Claimant provided as part of his replica pictures of him visiting the facilities of Roda JC
and train tickets between Kerkrade (where the latter club is based) and Antwerp.
34. Upon arrival in Antwerp, the Claimant outlined that he was lodged in a hotel for two days
and presented with a draft employment contract via the email address of his previous
club’s president.
35. The Claimant emphasized that, during his time in Antwerp, he received a visit of the
Respondent’s facilities and stadium. At this stage, a first contract was allegedly signed
between both parties.
36. The Claimant subsequently argued that he grew unsettled due to the prolonged wait for
an integration into the squad and allegedly informed the Respondent of his intention to
return home. Upon hearing this, the Respondent allegedly offered the Claimant a salary
raise from EUR 2,800 to EUR 4,850 (which corresponds to the salary in the Contract laying
at the basis of the present dispute).
37. Thus, the Contract, with revised terms, was allegedly signed on 22 September 2023.
38. According to the Claimant, in light of the continued failure of the Respondent to integrate
him, a warning letter was sent in November 2023, given that the season had already started
and the visa waiver period was coming to an end.
39. Thus, the Claimant argued that he had no other choice but to return home and terminate
the Contract unilaterally.
40. In view of all the above, the Claimant insisted on his initial request for relief.
d. Duplica of the Respondent
41. In its duplica, the Respondent largely reiterated its previous arguments, emphasizing that
the story of the Claimant bears no credibility.
42. In particular, the Respondent referred to the unrealistic travel itinerary of the Claimant,
and that there is no explanation as to how or why he travelled to Paris first, and
subsequently to the Netherlands and Belgium. Whilst there is a flight ticket to Paris on file
and a train ticket between Kerkrade and Antwerp, there is no explanation as to why the
Claimant did not directly travel to the Netherlands (or to Belgium), nor any proof as to how
the commute from Paris to the Netherlands took place.
43. The Respondent equally reiterated its allegation of forgery, stating that not only the
Contract is forged, but also the photographic evidence of the Claimant visiting the
Respondent’s stadium. The Respondent emphasized that there was no proof of any
pg. 7
REF. FPSD-13257
invitation or communication between the parties, telling the Claimant to visit the premises
in an official capacity.
44. Lastly, the Respondent stressed that it did not know the alleged “sponsorship and player
acquisition” manager responsible for scouting the Claimant, and that there was no proof
of his identity on file, due to which he should be invited to provide a witness statement to
the present proceedings.
45. In conclusion, the Respondent insisted on the claim to be rejected and for moral damages
to be paid by the Claimant.
pg. 8
REF. FPSD-13257
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
46. First of all, the Dispute Resolution Chamber (hereinafter: the 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 4 January 2024 and submitted for decision on
12 August 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.
47. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 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 Venezuelan player
and a Belgian club.
48. 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 (June 2024 edition) and
considering that the present claim was lodged on 4 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
49. 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
50. Having established the competence and the applicable regulations, 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
assessing the matter at hand.
pg. 9
REF. FPSD-13257
i. Main legal discussion and considerations
51. As a preliminary remark, the Chamber wished to point out that, although the Respondent
requested relief in its reply to the claim, it failed to complete its petition in accordance with
art. 18 par. 1 of the Procedural Rules, leading the Chamber to understand that the
counterclaim was withdrawn, and the Respondent’s submission shall serve as an ordinary
reply to the claim.
52. With this established, the Chamber then moved to the substance of the matter and took
note of the fact that the parties strongly dispute the validity (and existence) of the Contract,
and subject thereto, the lawfulness of the contractual termination that followed several
months after the alleged conclusion of the Contract.
53. In this context, the Chamber acknowledged that it its task was to determine, firstly, whether
or not the Contract was indeed validly concluded between the parties, based on the
evidence of the Claimant and the countervailing submissions of the Respondent.
54. Prior to entering the analysis of the matter as to its merits, the Chamber briefly revisited
the parties’ submissions.
55. On one hand, the Chamber recalled that the Claimant argued that he had duly travelled to
the Respondent’s premises and followed the instructions he was given in order to be
integrated into the squad. The Claimant emphasised that the authenticity of the Contract,
based on the evidence on file, was undeniable. As a result of the Respondent’s failure to
give effect to the Contract, and the breach of trust suffered thereby, the Claimant argued
that he had no choice but to prematurely terminate the employment relationship.
56. On the other hand, the Chamber noted that the Respondent outright rejected the
arguments of the Claimant, stating that it was never in contact with the latter, that the
allegations of visiting the Club’s premises are fabricated, and that the Contract is merely a
forgery. The Respondent equally emphasised that the Claimant’s alleged travel itinerary is
difficult to follow, and that it is unaware of any intermediary which may have facilitated a
purported transfer.
57. At this point, the Chamber wished to refer to the wording of art. 13 par. 5 of the Procedural
Rules, pursuant to which a party that alleges a certain fact also bears the burden of proving
its veracity.
58. With this in mind, the Chamber went on to consider the submissions and the evidence
adduced by the parties in order to firstly address the discussions concerning the validity of
the Contract.
pg. 10
REF. FPSD-13257
59. The Chamber recalled the timeline of the case for ease of reference. According to the
Claimant, the Respondent allegedly made an offer to him to join in September 2023, which
he purportedly duly accepted.
60. Thereafter, the Claimant travelled from Bogotá to Frankfurt, wherefrom he continued to
Paris and finally, through various additional steps, to Belgium.
61. Finally, the Claimant and the Respondent allegedly concluded the Contract (on two
occasions, under amended terms), whereafter he was purportedly ostracized from the
Club’s plans and driven to prematurely terminate the Contract.
62. In respect of the above, the Chamber found it noteworthy that, despite the numerous
allegations made concerning an introduction of the Claimant to the Respondent through
an intermediary and the complicated onboarding process he seemingly underwent, no
evidence was found on file which could credibly link the Claimant to the Respondent in as
far as tangible contact between the two parties was concerned.
63. In particular, the Chamber considered that, in the absence of any communication between
the two parties (or any linked party to said negotiation), and in the absence of any concrete
offer that could be traced back to the Respondent, it was difficult for the Chamber to reach
the conclusion that the parties had indeed communicated expectations, negotiated, and
thereupon concluded an employment agreement, as alleged.
64. Moreover, the Chamber was struck by the fact that, despite the involvement of such
intermediary seemingly playing a crucial role in the conclusion of the purported Contract,
no evidence identifying said party, and no written testimony from said party had been
provided in order to elucidate the context of the disputed negotiations.
65. The Chamber took note of the purported invitation letter which the Claimant had provided
to corroborate his narrative, however, observed that such invitation referred to an entirely
different entity – namely Roda JC Kerkrade.
66. The Chamber was not satisfied that such letter be linked to the Respondent, based on the
evidence on file, despite the argument that the Claimant “would no longer be recruited by
Roda JC, but rather by the club Lierse SK for their U23 team. The [Respondent] did not object to
this change, as [he] had no preference as regards those clubs”, particularly since such
argument was not adequately corroborated with any correspondence to that effect or
otherwise.
67. Furthermore, and importantly, the Chamber took note of the considerable inconsistency
concerning the Claimant’s travel itinerary, and the lack of evidence explaining the
ramifications thereof.
pg. 11
REF. FPSD-13257
68. From the initial submission of the Claimant, the Chamber understood that the Claimant
travelled from Bogotá, to Paris, and subsequently to Belgium. However, as it was revealed
in the Claimant’s replica, the latter had, at an unspecified date, with unclear means of
transportation, and in a very brief timeframe as from the arrival in Paris, travelled to the
Netherlands, wherefrom he allegedly continued to Antwerp, where the Contract was
seemingly concluded.
69. At this stage, the Chamber deemed it important to point out that the Claimant’s allegation
of having been invited to attend the premises of the Respondent remained – even after a
second round of submissions – uncorroborated, in the sense that, although the images
submitted to the file appeared to show the Claimant visiting the stadium, there was no
proof to demonstrate that this was conducted in an official capacity, upon the
Respondent’s invitation.
70. In respect of the above, the lack of evidence bringing together the Claimant’s itinerary and
linking such itinerary to instructions by the Respondent made it difficult for the Chamber
to follow the arguments presented before it.
71. What the Chamber was equally unsettled by was the fact that the Claimant had alleged that
the Respondent had told him – in September 2023 – to train with another team because
the pre-season had not started yet. At the same time, the Chamber was able to observe
that the Respondent had already completed its first competitive match of the season more
than a month prior.
72. The Chamber emphasised, in this regard, that this should have already raised doubts for
the Claimant, given clear contradiction with easily accessible information such as the
official playing schedule of the Respondent. The lack of communication or urgency of the
Claimant in bringing this to the Respondent’s attention in a written correspondence further
underpinned the Chamber’s view that contact between the parties was limited, and any
concrete contractual negotiation unlikely.
73. Beyond what was already established above, the Chamber noted that the Claimant failed
to adduce any evidence of having contacted the Respondent regarding any of its alleged
breaches in a utile timeframe. Given the seriousness and untenable nature of the
purported situation which the Respondent placed the Claimant in (i.e., unpaid salaries and
complete exclusion from the squad), the Chamber was surprised by the fact that, only two
months after the alleged signature of the Contract, the Claimant’s concerns were first
voiced.
74. Lastly, and most notably, the Chamber observed that, despite having been invited to do so,
the Claimant failed to provide the original version of the Contract via post, which could
have served to elucidate whether or not at least the signatures of the parties – amid the
inconsistencies given rise to by the circumstantial evidence in the case at hand – were
authentic.
pg. 12
REF. FPSD-13257
75. All in all, the Chamber was unconvinced, based on the evidence on file, that the parties
validly and bindingly concluded an employment agreement – i.e., the Contract.
76. It was the Chamber’s firm and unanimous opinion that the Claimant fell short of meeting
the burden of proving that he had a contractual entitlement or a legitimate expectation
from the Respondent.
77. Thus, and in absence of any contractual basis upon which to claim the amounts in dispute,
the Chamber saw no alternative but to reject the claim at hand in its entirety.
d. Costs
78. 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.
79. 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.
80. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-13257
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Kevin Alexander Palacios Hernandez, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-13257
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