Dispute Resolution Chamber
Texto da decisão
REF FPSD-2218
Decision of the
Dispute Resolution Chamber
passed on 29 July 2021
regarding an employment-related dispute concerning the player Duvier Orlando Riascos
Barahona
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italia), member
CLAIMANT:
Duvier Orlando Riascos Barahona, Colombia
Represented by Ercan Sevdimbas
RESPONDENT:
Dalian Yifang, China PR
Page 2
REF FPSD-2218
I.
FACTS OF THE CASE
1.
On 1 July 2018, the Colombian player, Duvier Orlando Riascos Barahona (hereinafter:
Claimant), and the Chinese club, Dalian Yifang (hereinafter: Respondent) signed an
employment contract valid as from said date until 31 December 2019.
2.
On 23 January 2019, the Parties concluded a Termination Agreement, by means of which,
the Respondent undertook to pay the Claimant:
USD 1,000,000 () on 28 March 2019
USD 1,000,000 on 30 May 2019
3.
With letter dated 27 September 2019, the Claimant put the Respondent in default of USD
600,000 as outstanding residual value of the second instalment originally due on 30 May
2019 (i.e. USD 1,000,000) and granted a deadline of 18 days for the latter to remedy its
default.
II.
PROCEEDINGS BEFORE FIFA
4.
On 5 April 2021, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a.
The claim of the Claimant
5.
In its claim, the Claimant highlighted that although more than 22 months had passed, the
outstanding claimed amount remained overdue.
6.
In the Claimant’s view, such protracted delay by the Respondent would clearly constitute
evidence of the latter’s bad faith.
7.
The request for relief of the Claimant, therefore, was the following:
To be awarded USD 600,000, plus 5% interest p.a. as of 30 May 2019
b.
8.
Position of the Respondent
On its reply to the Claim, the Respondent objected to have already paid all the outstanding
amounts due to the Claimant.
Page 3
REF FPSD-2218
9.
In this context, the Respondent argued that on 25 February 2019, the Parties signed a
Supplementary Agreement, by means of which the Termination Agreement previously
signed was amended.
10.
It shall be noted that according to the Respondent, said agreement would clearly refer any
potential dispute to the CAS jurisdiction, hence FIFA DRC competence shall be excluded.
11.
As to the substance, the Respondent alleged that pursuant to the above-mentioned
Supplementary Agreement, the original termination fee of USD 2,000,000 had been
reduced to USD 1,000,000, and the respective two instalments of USD 1,000,000 were
accordingly reduced to USD 500,000 each (the expiry date remaining the same)
12.
In particular, the Respondent alleged to have first paid USD 481,342.58 USD to the
Claimant on 8 March 2019, respectively split in two instalments of USD 250,000 and USD
231,342.58, and that the amount of USD 18,657.42 was deduced from the total of USD
500,000 as flight ticket expenses incurred by the Claimant‘ son.
13.
Secondly, the Respondent alleged to have paid also the second instalment of USD 500,000,
namely on 26 April 2019, by doing so extinguishing all its financial obligations towards the
Claimant
c.
Claimant’s replica to the Respondent’ submission
14.
In replica to the Respondent’s allegation concerning the existence of a Supplementary
Agreement, the Claimant accused the Respondent of having falsified the Claimant’
signature.
15.
In order to prove the above, the Claimant submitted copy of different documents presenting
the his signature in order to be compared with the one inserted on the alleged
Supplementary Agreement.
16.
Furthermore, the Claimant submitted copy of his’s passport as a proof of the fact that on
the date of conclusion of the alleged Supplementary Agreement, he was not staying in
China.
17.
Questioned upon the alleged payments of the Respondent, the Claimant confirmed that
the Respondent paid only the following amounts:
USD 250,000 on 31 January 2019
USD 250,000 on 31 March 2019
USD 231,342.58 on 31 March 2019
USD 500,000 on 30 April 2019
Page 4
REF FPSD-2218
18.
19.
Therefore, according to the Claimant only the amount of USD 1,231,342 was paid by the
Respondent.
Accordingly, the Claimant amended its request for relief, demanding to be awarded the
total amount of USD 768,858 plus 5% interest p.a. as of 30 May 2019.
d.
Duplica of the Respondent
20.
In response to the Claimant’s accusation of forgery, the Respondent argued that not only
the aforementioned Supplementary Agreement was really signed by Claimant, but also that
the latter’s Agent was aware of said document.
21.
In fact, according to the Respondent, on 28 February 2019 the Chinese Club and the
Agency “Medio Sport Consulting Co. Ltd.”, signed a Commission Agreement, by means of
which the Respondent undertook to pay the latter USD 1,000,000 as remuneration for
having acted as intermediary, inter alia, in the conclusion of the Supplementary Agreement
that led to the reduction of the previous Termination Agreement dated 23 January 2019.
22.
Moreover, with regard to the amendment of the request for relief by the Claimant as due
to a re-calculation of the amounts paid by the Respondent, the latter argued that the
payment of USD 250,000 realized on 31 January 2019 was exclusively referring to the
monthly salary of December 2018.
23.
Finally, the Respondent reserved its good faith by alleging that it was the Claimant’s Agent
to produce the document referred to as Supplementary Agreement, hence the Respondent
trusted in the authenticity of the Claimant’ signature and it would have no fault in case of
effective forgery.
III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
24.
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 5 April 2021 and submitted for
decision on 29 July 2021. Taking into account the wording of art. 21 of the January 2021
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
25.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
Page 5
REF FPSD-2218
b) of the Regulations on the Status and Transfer of Players (edition February 2021), the
Dispute Resolution Chamber would, in principle, be competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension
between a Colombian player and a Chinese club.
26.
However, the Chamber acknowledged that the Respondent, in view of article 2 of the
Supplementary Agreement as allegedly signed by the Parties, contested the competence of
FIFA’s deciding bodies as, pursuant to said document, the present matter shall be
adjudicated by the Court of Arbitration for Sport (CAS) Shanghai Alternative Hearing centre,
based in Shanghai, China.
27.
The Chamber further noted that, conversely, the Claimant rejected the position of the
Respondent as to FIFA’s lack of jurisdiction and argued that the abovementioned
Supplementary Agreement has been fabricated by the same Respondent, hence it is a false
document and shall be disregarded.
28.
In this context, the Chamber observed that the Claimant disavowed his own signature on
the above-mentioned agreement, remarking a clear evidence with the original one as
inserted, for example, on the employment agreement dated 1 July 2018.
29.
With the above in mind, the Chamber first of all recalled that, in principle, FIFA DRC is not
the competent deciding body that can deal with forgery allegations.
30.
However, the Chamber noted that, according to the Respondent, it was the Claimant’s
agent who negotiated the terms of the Supplementary Agreement and that the same agent
allegedly provided them with a copy signed by the Claimant.
31.
Moreover, according to said agreement, the agent would have been entitled to a
commission of EUR 1,000,000, while the Claimant would have waived a significant part of
the outstanding remuneration.
32.
In this respect, the Chamber remarked that the Respondent failed to provide decisive
documentary evidence, on the basis of which it could be concluded that said document has
been effectively signed by the Claimant and not by his agent.
33.
In particular, the Chamber observed that the Termination Agreement dated 23 January
2019 included the Claimant’s fingerprint, whereas the supplementary agreement did not.
34.
Furthermore, it appears evident to the Chamber the difference between the signature of
the Claimant inserted in the Supplementary Agreement and the other ones contained in
the other documents submitted by the Parties.
35.
In this sense, the DRC concluded that it is not possible to establish with certainty that the
Claimant’s signature on the Supplementary Agreement is legitimate, hence said document
shall be disregarded.
Page 6
REF FPSD-2218
36.
Subsequently, and taking into account all the foregoing circumstances as well as the
contents of the Termination Agreement, 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 Player
(edition February 2021) and considering that the present claim was lodged on 5 April 2021,
the aforementioned edition of said regulations (hereinafter: the Regulations) is applicable
to the matter at hand as to the substance.
b.
Burden of proof
37.
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
38.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
39.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
40.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that, having established that the Supplementary Agreement shall
be disregarded, the Termination Agreement dated 23 January 2019 shall be the only
document to take into consideration.
41.
In this respect, the Chamber noted that according to said agreement, the Respondent
undertook to pay a total of USD 2,000,000 to the Claimant - split into two instalments and that the amount of USD 768,858 claimed as outstanding residual value of the second
instalment originally due on 30 May 2019 (i.e. USD 1,000,000) remained uncontested as
the Respondent focused exclusively on the aforementioned Supplementary Agreement.
Page 7
REF FPSD-2218
42.
Therefore, the abovementioned amount shall be awarded to the Claimant as outstanding
remuneration.
ii. Consequences
43.
Having stated the above, the members of the Chamber concluded that the Claimant shall
be entitled to USD 768,858 as outstanding fee agreed by termination agreement dated 23
January 2019.
44.
Furthermore, in line with the long-standing DRC jurisprudence and as per Claimant’s
request, an interest of 5% per annum over the awarded amount shall be charged.
iii. Compliance with monetary decisions
45.
Finally, the Chamber referred to par. 1 and 2 of art. 24bis 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.
46.
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.
47.
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. 24bis par. 2, 4, and 7 of the Regulations.
48.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
49.
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. 24bis par. 8
of the Regulations.
d.
50.
Costs
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
Page 8
REF FPSD-2218
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
51.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
52.
Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
Page 9
REF FPSD-2218
IV.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Duvier Orlando Riascos Barahona, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Dalian Yifang, has to pay to the Claimant, the following amount:
USD 768,858 as outstanding termination fee plus 5% interest p.a. as from 31 May
2019 until the date of effective payment.
4.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the 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 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
7.
This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 10
REF FPSD-2218
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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
Page 11