Labour Disputes
Texto da decisão
REF FPSD-3925
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Adil Rami
COMPOSITION:
Clifford J. Hendel (USA/France), Chairperson
Andre Megale (Brazil), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Adil Rami, France
Represented by Mr Jules Plancque
RESPONDENT:
Boavista Futebol Club, Portugal
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REF FPSD-3925
I.
Facts of the case
1.
On 4 September 2020, the French player, Adil Rami (hereinafter: “the player” or “the
Claimant”), and the Portuguese club, Boavista Futebol Club (hereinafter: “the club” or “the
Respondent) signed an employment contract (hereinafter: “the contract”) valid from 4
September 2020 until 30 June 2022.
2.
Article 3.1 of the contract stated that the club should pay to the player the net remuneration
annual amount of EUR 350,000.
3.
Article 3.2 of the contract stated that the remuneration would be paid by the club in 10
monthly instalments, starting on 05 October 2020 and ending on 05 June 2021 in the first
season, and in the 2021/22 season the club would pay between August 2021 and May 2022.
4.
Article 3.4 of the contract stated that the player would be entitled to receive EUR 10,000
net/year in concept of accommodation and EUR 2,000 net/year as transport costs.
5.
On 29 July 2021, the player and the club concluded a “Revocation of Sports Employment
Contract Agreement” (hereinafter: “the agreement”) to revoke the contract.
6.
Clause 3.1 of the agreement stated, “On the date of this agreement, and in addition to his
salaries on a pro rata basis for the 2021/2022 season, the PLAYER will be entitled to receive
from BOAVISTA SAD the net of all charges and taxes amount of EUR 42,400 for the remaining
balance for the 2020/2021 season”.
7.
Clause 3.2 of the agreement stated that the club had to pay the player the amount of EUR
123,000 net as compensation for moral damages. This amount should be paid as follows:
31 August 2021: the amount of EUR 39,500 net.
30 September 2021: the amount of EUR 39,500 net.
31 October 2021: the amount of EUR 39,500 net.
30 November 2021: the amount of EUR 4,500 net.
8.
Clause 3.4 of the agreement stated, “ If BOAVISTA SAD fails to pay the instalments referred
in clause 3.1 before 15 August 2021 at the latest, each of the instalments following the
unpaid instalment should became immediately due and payable from the first day of default
until the effective payment and the club should pay a daily interest of EUR 500. Furthermore,
if BOAVISTA SAD failed to pay the instalments referred in clause 3.2 within 15 days of their
due date, each of the instalments following the unpaid instalment should became
immediately due and payable and from the first day of default until the effective payment of
the amounts due, the club should pay a daily interest of EUR 500”.
9.
On 16 August 2021, the player sent a default notice to the club requesting the payment of
the total amount of EUR 76,264.52 based on the agreement. In addition, the player stated
that as this amount was not paid before 15 August 2021, the agreed instalment plan would
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no longer apply, with all the sums due becoming immediately payable and applying an interest
of EUR 500 per day since the date of the default notice. Moreover, the player stated that the
club owed him the total amount of EUR 199,264.52.
10. On 17 August 2021, the club replied expressing that they did not receive an amount of money
they were expecting to fulfil their obligation. The club asked the player for patience and
understanding and stated that they will fulfil its compromises in the shortest time as possible.
11. On 23 August 2021, the player sent an email to the club informing that they did not fulfil
their obligations in accordance with the agreement and that the interests for late payment
continued to accrue.
12. On 31 August 2021, the player sent a new email to the club asking an update about payment
of the outstanding amount and communicating that if the situation persisted the player would
refer the matter to FIFA requesting sanctions for the club.
II. Proceedings before FIFA
13. On 7 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
14. According to the Claimant, the Respondent did not honour the terms of the agreement.
15. The requests for relief of the Claimant were the following:
EUR 42,400 net as outstanding salaries related to the 2020/2021 season;
EUR 33,864.52 as outstanding salary of July 2021, on a pro rata basis of the player´s
effective presence in the club;
EUR 105,000 net as outstanding compensation for the early termination of the contract
by the club;
EUR 18,000 net related to the termination notice for the accommodation and
EUR 5,000 net as legal and administrative costs to lodge the present claim.
16. In addition, the player requested the application of an interest of EUR 500 per day as form 16
August 2021 in accordance with clause 3.4 of the agreement. The player indicated that at
the moment of lodging the claim the interest amounted to EUR 26,000.
17. Furthermore, the player requested the imposition of sporting sanctions to the club.
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b. Position of the Respondent
18. 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
19. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Chamber” or
“the 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 07 October 2021 and submitted
for decision on 27 January 2022. 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.
20. 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 French player and a
Portuguese club.
21. 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 07 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
22. 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).
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c. Merits of the dispute
23. 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
24. 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.
25. In this context, the Chamber recalled that the parties concluded the contract that was valid
until 30 June 2022 and almost one-year after (i.e. on 29 July 2021), the Claimant and the
Respondent put an end to their employment relationship and concluded the agreement.
26. The Chamber underlined that based on the agreement the Respondent promised to pay to
the Claimant certain amounts as outstanding remuneration for the season 2021/2022 and
compensation for the premature termination of the contract.
ii. Consequences
27. The DRC noted that it remained uncontested that the Respondent did not pay to the Claimant
the total amount of EUR 75,864.52 as outstanding remuneration for the 2020/2021 season
based on clause 3.1 of the agreement, namely EUR 42,400 plus EUR 33,864.52.
28. Therefore, the Chamber underlined that in accordance with the legal principle of pacta sunt
servanda, which in essence means that the parties in good faith must respect agreements,
the Claimant is entitled to receive from the Respondent the amount of EUR 75,864.52 as
outstanding remuneration.
29. Moreover, the Chamber acknowledged that the Claimant requested the application of a daily
interest of EUR 500 on the aforementioned outstanding amount based on clause 3.4 of the
agreement.
30. The DRC underlined that said provision clearly established that in case the club would not pay
the outstanding remuneration for the 2020/2021 season by 15 August 2021, the club should
pay to the player a daily interest of EUR 500.
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31. Notwithstanding the above, the DRC remarked that even though the aforementioned daily
interest was contractually agreed by the parties, it was up to the competent deciding body to
judge if it was reasonable and hence binding between the Claimant and the Respondent.
32. Consequently, the Chamber started by underlying that applying a daily amount of EUR 500
would result approximately in EUR 15,000 monthly. In this respect, the DRC highlighted that
if we calculate the daily interest from the due date (i.e. 15 August 2021) until the date of the
decision (i.e. 27 January 2022) approximately 5 months, the daily interest would reach almost
the same amount than the outstanding one.
33. As a result, the DRC concluded that a daily interest of EUR 500 agreed by the parties in the
agreement was to be considered excessive.
34. In light of the above, the Chamber decided to grant an annual interest at a rate of 18% on
the amount of EUR 75,864.52 from 16 August 2021 until the date of effective payment.
35. In continuation, the DRC focussed its attention to the Claimant´s request for EUR 105,000 as
compensation for the premature termination of the contract and EUR 18,000 related to the
termination notice for accommodation allegedly based on clause 3.2 of the agreement.
36. In this respect, the Chamber took note of the Claimant´s allegation that the amount of EUR
18,000 was included in clause 3.2 of the agreement. The DRC observed that said clause
included a total amount of compensation, i.e. EUR 123,000 without indicating specifically
that part or it covered the termination notice for accommodation.
37. After a detailed analysis of the relevant clause, the Chamber arrived to the conclusion that
the amount of EUR 18,000 was part of the compensation together with the sum of EUR
105,000 providing a total sum of compensation amounting to EUR 123,000.
38. Subsequently, the DRC pointed out that clause 3.4 second part of the agreement included
an acceleration clause, which states, “… Furthermore, if BOAVISTA SAD failed to pay the
instalments referred in clause 3.2 within 15 days of their due date, each of the instalments
following the unpaid instalment should became immediately due and payable and from the
first day of default until the effective payment of the amounts due, the club should pay a
daily interest of EUR 500…”.
39. At this stage, the Chamber underlined that taking into account that the Respondent did not
present any evidence of payment, it can be concluded that the relevant acceleration clause
was triggered on 31 August 2021, i.e. due date of the first instalment amounting to EUR
39,500 and at that moment the total amount of compensation (i.e. 123,000) became due.
40. Consequently, 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 amount of EUR
123,000 as compensation.
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41. Lastly, the Chamber acknowledged the Claimant´s request for a daily interest of EUR 500 on
the amount of compensation. In this regard, the DRC reiterated its previous considerations
and concluded that said daily interest was excessive.
42. 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 123,000 as from 1 September 2021 until the date of effective
payment.
iii. Compliance with monetary decisions
43. 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.
44. 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.
45. 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.
46. 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.
47. 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
48. 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
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agent, or match agent”. Accordingly, the Chamber decided that no procedural costs were to
be imposed on the parties.
49. 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.
50. 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, Adil Rami, is partially accepted.
2.
The Respondent, Boavista Futebol Club, has to pay to the Claimant, the following amounts:
EUR 75,864.52 as outstanding remuneration plus 18% interest p.a. as from 16 August
2021 until the date of effective payment;
EUR 123,000 as compensation plus 5% interest p.a. as from 01 September 2021 until
the date of effective payment.
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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