Labour Disputes
Texto da decisão
REF FPSD-4003
Decision of the
Dispute Resolution Chamber
passed on 16 February 2022
regarding an employment-related dispute concerning the player Aleksandar
Pesic
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Stefano Sartori (Italy), member
Khalid Awad Al-Thebity (Saudi Arabia), member
CLAIMANT:
Player Aleksandar Pesic, Serbia
Represented by Radic & Radic
RESPONDENT:
Club Al Ittihad, Saudi Arabia
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I.
Facts of the case
1.
On 11 July 2018, the Serbian player, Aleksandar Pesic (hereinafter: “the Claimant” or “the
player”), and the Saudi Arabian club, Al Ittihad (hereinafter: “the Respondent” or “the club”)
signed an employment contract (hereinafter: “the contract”) valid from 15 July 2018 until
the end of the season 2020/21 (i.e. 30 June 2021).
2.
Article 4 of the contract stated that the club should pay to the player as basic wage for the
entire period of the contract the amount of USD 6,000,000, payable as follows:
USD 1,200,000 net as signing on fee;
USD 4,800,000 net in the form of 36 monthly instalments of USD 133,333.33.
3.
On 31 January 2019, the player and the club concluded an agreement regarding the loan of
the player to the Korean club, FC Seoul from the winter registration period until 30 June 2021.
4.
Article 2 of the agreement stated that the club would timely pay 50% of the monthly salaries
as agreed on the contract and the player confirmed that the club did not have to pay any
other amount for the whole duration of the loan.
5.
Article 3 of the agreement stated that the club must pay two monthly salaries that were due
for the months of December 2018 and January 2019 no later than 05 February 2019 and the
player confirmed that no other amounts were outstanding in what concerned the period
between July 2018 and January 2019.
6.
On 23 November 2020, the player lodged a claim against the club before FIFA (ref. 20-01706).
On 25 March 2021, the DRC rendered a decision.
7.
On 01 April 2021, the player and the club concluded a settlement agreement (hereinafter:
“the settlement agreement”) to fully and finally settle the dispute.
8.
Article 1.1 of the settlement agreement stated that the club should make the payment of the
following amounts to the player:
- First instalment: net USD 693,334.99 plus 5% interest as of the respective due dates,
payable no later than 01 May 2021, corresponding to the outstanding remuneration:
USD 66,667.00 plus 5% interest p.a. as of 1 October 2019 until 28 February 2021;
USD 66,667.00 plus 5% interest p.a. as of 1 November 2019 until 28 February 2021;
USD 66,667.00 plus 5% interest p.a. as of 1 December 2019 until 28 February 2021;
USD 66,667.00 plus 5% interest p.a. as of 1 January 2020 until 28 February 2021;
USD 66,667.00 plus 5% interest p.a. as of 1 February 2020 until 28 February 2021;
USD 133,333.33 plus 5% interest p.a. as of 1 August 2020 until 28 February 2021;
USD 133,333.33 plus 5% interest p.a. as of 1 September 2020 until 28 February 2021;
USD 93,333.33 plus 5% interest p.a. as of 1 October 2020 until 28 February 2021;
- Second instalment: net USD 1,400,000, payable no later than 30 September 2021,
corresponding to claimed compensation for the breach of contract.
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- An additional amount of USD 10,000.00, payable together with the second instalment as
a contribution to the player's legal fees on the bank account of the attorney.
9.
Article 1.6 of the settlement agreement stated that in case of a failure of the club on paying
any of the due amounts established in the settlement agreement, an additional penalty of
USD 100,000 should apply for each of the two instalments. Only then, the player would have
the following options:
To maintain the settlement agreement and claim the separate payment of the penalty
while he negotiated with the club about a new extension of the deadline for the payment;
To cancel the settlement agreement by written unilateral decision and resume the FIFA
procedure.
10. On 27 April 2021, the player and the club concluded an amendment to the settlement
agreement (hereinafter: “the amendment”) in which, upon request of the club, they defined
a new payment date for the first instalment and agreed to respect and execute the
aforementioned settlement agreement. The first instalment, according to the amendment,
should have been paid on 15 June 2021.
11. On 03 August 2021, the player sent an email to the club claiming that until that day the latter
did not make any payment and that because of the good will of the player he would lose
more than 5 months of the procedure before the FIFA.
12. On 16 August 2021, the player sent an email to the club warning the latter that if it did not
pay the first instalment until the end of that week, based on the settlement agreement, the
player would sent a letter to SAFF and to AFC requesting for sanctions against the club in
their license proceedings and inform the President of FIFA as well.
13. On 13 September 2021, the player sent a new reminder to the club to pay the first instalment.
14. On 20 September 2021, the player sent a new email to the club requesting again the payment
of the first instalment taking into account that within 10 days (on 30 September) the second
instalment would be due.
15. On 27 September 2021, the player sent an email to the club requesting the payment of the
first and second instalments, warning the latter that if it did not pay, the club would be forced
to pay to the player the two penalties.
16. On 30 September 2021, the player sent an email with the invoice for the legal fees (USD
10,000) regarding the article 1.1. of the settlement agreement. Also, the player asked the
club to send them the proof of the payment of the second instalment for the amount of USD
1,400,000 net that they were obligated to pay that day.
17. On 02 October 2021, the player sent a default notice to the club requesting the payment of
the total amount of USD 200,000 as contractual penalties for not paying what it was agreed
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by the parties on the settlement agreement, granting the club 10 days to remedy its default,
to no avail.
II. Proceedings before FIFA
18. On 17 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
19. According to the Claimant, the Respondent did not fulfil the payments of the instalments
agreed by the parties in the settlement agreement and its amendment on time.
20. The player requested to impose the corresponding penalties pursuant to article 1.6 of the
settlement agreement. Furthermore, the player chose to maintain the settlement agreement
and claim the separate payment of the penalties as indicated in said clause.
21. The player claimed that the first penalty of USD 100,000 was triggered because the club did
not pay the first instalment on time, which was the new date agreed in the amendment, i.e.
“no later than 15 June 2021”.
22. In addition, the player claimed the second penalty amounting to USD 100,000 since the club
did not pay the second instalment on time, which was agreed to be paid “no later than 30
September 2021” (cf. article 1.1 of the settlement agreement).
23. The requests for relief of the Claimant, was the following:
USD 200,000 as contractual penalties plus 5% interest p.a. as from the respective due
dates.
b. Position of the Respondent
24. Even though the Respondent had the opportunity to present its position in connection to the
present claim, it failed to present any comments.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. 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
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that the present matter was presented to FIFA on 17 October 2021 and submitted for decision
on . 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.
26. 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 an Serbian player and
a Saudi Arabian club.
27. 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 17 October 2021, the August 2021 edition
of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to
the substance.
b. Burden of proof
28. 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
29. 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
30. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent did not submit its position to the claim lodged
against it by the Claimant, despite having been asked to do so by FIFA. Therefore, the
Chamber concluded that, in this way, the Respondent had renounced to its right of defence
and, thus, it had not formally contested the allegations of the Claimant.
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31. In this context, the Chamber recalled that on 1 April 2021, the parties concluded the
settlement agreement by means of which the Respondent compromised to pay to the
Claimant, inter alia, two instalments, being the first one due on 1 May 2021 and the second
one on 30 September 2021.
32. What is more, the Chamber acknowledged that the parties agreed in article 1.6 of the
settlement agreement a penalty in favour of the Claimant in case of failure by the Respondent
to pay the relevant instalments on time.
33. Subsequently, the DRC took note that by means of the amendment concluded on 27 April
2021, the parties postponed the date of payment of the first instalment to 15 June 2021.
Besides, the DRC reiterated that the second instalment was due to be paid on 30 September
2021.
34. At this stage, the Chamber observed that taking into account that the Respondent allegedly
paid both instalments late; the Claimant lodged the present claim before FIFA requesting
penalties for a total amount of USD 200,000, i.e. USD 100,000 for each default, in accordance
with article 1.6 of the settlement agreement.
ii. Consequences
35. The DRC noted that it remained uncontested that the Respondent paid to the Claimant both
instalments with delay.
36. Subsequently, the Chamber recalled that the relevant instalments amounted to USD
693,334.99 and USD 1,400,000 respectively.
37. In this respect, the DRC underlined that an amount of USD 100,000 applicable on each of the
instalments for late payment was to be considered a reasonable and justified penalty.
38. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the penalty
contractually agreed for a total amount of USD 200,000.
39. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to reject the application of interest over the penalty.
iii. Compliance with monetary decisions
40. 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
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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.
41. 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.
42. 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.
43. 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.
44. 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
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
the Claimant.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Aleksandar Pesic, is partially accepted.
2.
The Respondent, Al Ittihad, has to pay to the Claimant, the total amount of USD 200,000 as
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 the ban shall
be of 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 article 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
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