Labour Disputes
Texto da decisão
REF FPSD-3712
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Iván
Santiago Diáz
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Elvis Chetty (Seychelles), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Iván Santiago Diáz, Argentina
Represented by Monika Hubocká
RESPONDENT:
MŠK Žilina, Slovakia
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REF FPSD-3712
I.
Facts of the case
1.
On 16 September 2017, the Argentinian player, Iván Santiago Diáz (hereinafter: the Claimant
or player), and the Slovak club, MŠK Žilina (hereinafter: the Respondent or club) signed an
employment contract (hereinafter: contract) valid as from 1 October 2017 until 31 December
2020.
2.
According to the contract, the Respondent undertook to pay the Claimant, inter alia, a
monthly salary of EUR 10,000 net, between 1 July 2020 and 31 December 2020, payable
until the 15th day of the following month.
3.
Art. VI lit 3. of the contract reads as follows: “The club has the right to
[…]
In case the player fails to meet the obligations arising from the contract as well as in case of
weak and reckless performance of the player […] to reclassify the Player to the B team of the
club with adequate decrease of the monthly salary”.
4.
Art. IX of the contract establishes: “The contractual parties agreed that the disputes arising
from the present contract shall be solved mainly by the agreement. In case it is not possible
to reach the agreement the disputes shall fall under jurisdiction of the Dispute Resolution
Chamber of Slovak Football Association or Arbitration Court of Slovak Football Association,
that are governed by their own statutes and regulation”.
5.
On 11 August 2020, the Respondent sent a letter to the Claimant informing him of his
“reclassification to the B Team of the club” and that his salary will be reduced to 50% as of
1 July 2020.
6.
On 13 August 2020, the Claimant protested against the ban from the first team and the
salary cut, which is a breach of contract.
7.
On 18 August 2020, the Respondent replied to the Claimant insisting that it acted in
accordance with the contract.
8.
On 6 January 2021, the Claimant put the Respondent in default and requested payment of
EUR 30,000 net, corresponding to half of his salaries between July 2020 and December 2020,
within 10 days.
9.
On 11 January 2021, the Respondent replied to the Claimant referring to its previous letter
and denying any debt towards him.
10. On 21 January 2021, the Claimant lodged a claim against the Respondent in front of FIFA
and requested payment of EUR 30,000 net, corresponding to half of his salaries between July
2020 and December 2020 (Ref. no 21-00134/svi).
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11. On 1 March 2021, the above-mentioned claim was sent to the Respondent in order to receive
its position until 21 March 2021.
12. On 8 March 2021, the Claimant signed the following document:
13. On 12 March 2021, the Claimant withdrew its claim in the proceeding 21-00134/svi since,
“the Claimant is not able to continue in his career with a new club within Slovakia without
consent of the Respondent as a former club of the player (pursuant to Slovak FA’s
regulations). This consent won’t be given by the Respondent if there is a claim pending at
FIFA”.
II. Proceedings before FIFA
14. On 17 September 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
15. In his claim, the Claimant requested payment of EUR 30,000 net as outstanding
remuneration, corresponding to half of his salaries between July 2020 and December 2020
plus 5% interest p.a. as of the due dates.
16. In this context, the player held that the reduction of his salary was a unilateral decision to
which he protested from the start.
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17. The player argued that the art. IV lit. 3 of the contract shall be disregarded as it is of
“potestative nature”.
b. Position of the Respondent
18. In its reply, the Respondent contested FIFA’s competence to deal with the matter at hand and
referred to art. IX of the contract, which allegedly gives exclusive jurisdiction to the DRC of
the Slovak FA, which exists.
19. As to the substance, the Respondent rejected the player’s claim and held that he voluntarily
signed the document “Reconciliation of receivables” on 8 March 2021 and therefore no
payments were due as of this moment.
20. Moreover, the Respondent held that it was informed by FIFA that the previous claim was
withdrawn and therefore the present claim is “groundless and unfounded”.
c. Replica of the Claimant
21. In its replica, the Claimant insisted on FIFA’s competence since the Respondent did not submit
any evidence that the NDRC would meet the requirements set by FIFA, due to the fact that
the Slovak NDRC is not independent.
22. The Claimant further held that he never received his outstanding dues and that the document
dated 8 March 2021 shall be null and void, since the player was exploited by the club, found
himself in “straitened circumstances” due to fact of the continuation of his career and due
to the disparity created by the document.
23. He held that he had no choice and had to sign the letter and to withdraw his previous claim.
d. Duplica of the Respondent
24. In its duplica, the Respondent insisted that the Slovak NDRC is independent. The Respondent
referred to several articles in the statutes of the NDRC without submitting the actual
regulations.
25. Furthermore, the Respondent argued that the reduction of the player’s salary was in line with
the contract.
26. Moreover, the Respondent held that the document dated 8 March 2021 is legally binding
and valid.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. 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 17 September 2021 and submitted for
decision on 24 March 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.
28. The Chamber further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the National Dispute Resolution Chamber of Slovakia
(hereinafter: NDRC of Slovakia) alleging that the latter is competent to deal with any disputes
deriving from the relevant employment contract, in accordance with its clause IX.
29. The Chamber also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the NDRC of Slovakia is not an independent arbitration
tribunal guaranteeing fair proceedings and respecting the principle of equal representation
of players and clubs.
30. Taking into account all the above, the Chamber emphasised that in accordance with art. 22
par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such dispute
to be decided by an independent arbitration tribunal that has been established at national
level within the framework of the association and/or a collective bargaining agreement. Any
such arbitration clause must be included either directly in the contract or in a collective
bargaining agreement applicable on the parties. The independent national arbitration tribunal
must guarantee fair proceedings and respect the principle of equal representation of players
and clubs. Equally, the Chamber referred to the principles contained in the FIFA National
Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
31. In this respect, the Chamber noted that the Respondent failed to provide any documentary
evidence which could prove that the NDRC of Slovakia meets the requirements established in
art. 22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, detailed in the
FIFA Circular no. 1010 as well as in art. 3 par. 1 of the NDRC Regulations. On account of the
above, and referring to the principle of burden of proof contained in art. 13 par. 5 of the
Procedural Rules, the Chamber established that the Respondent’s objection towards the
competence of FIFA to deal with the present matter must be rejected, and FIFA is competent,
on the basis of art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to
the substance.
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32. 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 (March 2022 edition), and
considering that the present claim was lodged on 17 September 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
33. 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
34. 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
35. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute if the player is entitled to the
outstanding remuneration claimed.
36. In this context, the Chamber acknowledged that it its task was to decide if the player waived
his salaries with the document signed on 8 March 2021 or if he is entitled to receive the
monies claimed.
37. In this regard, the DRC started analysing the content of the document dated 8 March 2021
and pointed out that according to the wording, the player validly waived his entitlements at
this point.
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38. Moreover, referring to art. 13. Par. 5 of the Procedural Rules, the DRC deemed that the
Claimant has not provided sufficient evidence which supported the fact that he had been
under duress or “straightened circumstances” or that his transfer to another club could have
been blocked by the Respondent based on the Slovak FA regulations.
39. On account of the above, the Chamber concluded that the player waived his entitlement.
ii. Consequences
40. Consequently, the DRC decided to reject the player’s claim.
d. Costs
41. 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.
42. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Iván Santiago Diáz, is admissible.
2.
The claim of the Claimant is rejected.
3.
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).
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