Labour Disputes
Texto da decisão
REF. FPSD-11520
Decision of the
Dispute Resolution Chamber
passed on 22 November 2023
regarding an employment-related dispute concerning
the player José Augusto Sardon
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Johan VAN GAALEN (South Africa), Member
Calum BEATTIE (Scotland), Member
CLAIMANT:
José Augusto Sardon, Argentina
Represented by Ariel N. Reck
RESPONDENT:
Sitra SC, Bahrain
pg. 2
REF. FPSD-11520
I. Facts of the case
1.
On 7 July 2022, the Argentinian player, José Augusto Sardon (hereinafter: the Claimant or
the player) and the Bahraini club, Sitra SC (hereinafter: the Respondent or the club) concluded
an employment contract (hereinafter: the contract) valid as from 1 August 2022 until 30
April 2023, or until the end of the last official match of the club in the relevant season.
2.
In the first part of the contract, it was mentioned that the player holds the Bahraini
nationality.
3.
Clause 4 of the contract reads as follows (quoted verbatim):
“[the club] is obliged to the following:
- [the club] is obliged to pay a monthly salary to the player in the amount of
USD3000/- only from 01/08/2022 to the last match of the club football first team in
the sports season 2022-2023.
- Provide an adequate accommodation and transportation to the player until the last
match of the club football first team in the sports season 2022/2023.
- [the club] is obliged to provide a Player ticket.
- pay a commission to the player’s agent at 10% of the value of the contract on behalf
of the player”.
4.
Clause 9 of the contract reads as follows:
“1. - The contract ends with the expiry of its term, or by agreement of the parties
according to a clearing between them in financial, administrative and technical
matters.
2- Either party has the right to terminate the contract if there is a legitimate reason or
a just sporting reason, subject to the regulations of the national and International
Football Associations.
3- The foregoing shall not prejudice all other rights of the player under this contract.
4- In case, any wishes to cancel the settled contract during its validity, the party wishing
to end the contract is obliged to pay an amount of 9000/ - USD (Nine thousand only)
as a penalty condition to the other party.
- if any clause of this contract is violate the FIFA and BFA regulations, this clause
will be declared null and the contract shall be valid.”
pg. 3
REF. FPSD-11520
5.
On 28 January 2023, the Respondent sent to the player a termination notice (hereinafter;
the termination notice) which included the following information:
“[…] Kindly treat this letter for as your Notice of Termination of employment with Sitra
Cultural and Sports Club from its date and according to what was specified in
Condition 4 of Clause 9 of the contract concluded on July 7, 2022, which obliges the
party responsible for the termination to pay an amount of $9,000 as a penalty clause
to the other party.”
6.
It is to be noted that the copy of the termination notice provided by the club included the
acknowledgement and signature of the player which was quoted as follows: “When I sign
this letter of unilateral termination by the club, I have not yet received the amount described in
the letter and I still have to receive the salary for the month of January”.
7.
On 28 January 2023, the player signed an employment contract with the Bahraini club,
Etehad Al Reef, valid as from the date of signature until 31 May 2023, with a monthly salary
of USD 500.
II. Proceedings before FIFA
8.
On 28 August 2023, 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
9.
In his claim, the player argued that the club failed to comply with its financial obligations
under the contract by not paying the following amounts:
-
December 2022 and January 2023 salaries (USD 6,000).
-
The housing allowance from August 2022 until January 2023, totalling BHD 3,015,8
(BHD 112 + BHD 653 + BHD 450 + BHD 450 + BHD 450 + BHD 450 + BHD 450)
equivalent to USD 7,990. The player provided evidence on this point and indicated
that the mentioned amounts were paid on 13 February 2023.
-
The reimbursement of the flight ticket (USD 1,567). The player provided evidence
on this point.
10. In addition, the Claimant stressed that the contract was terminated without just cause and
requested the payment of USD 9,000 as compensation in accordance with clause 9 of the
contract.
pg. 4
REF. FPSD-11520
11. The Claimant further requested interest of 5% p.a. as from 28 January 2023 over the
outstanding amounts and compensation and to apply sporting sanctions on the club.
b. Information requested to the Bahrain Football Association (BFA)
12. On 29 August 2023, the FIFA general secretariat requested the BFA to inform FIFA under
which nationality the player was registered with the club.
13. On 3 September 2023, BFA confirmed that the player was registered with the Argentinian
nationality, and that it appears that the club had mistakenly listed the player with the
Bahraini nationality in the contract.
c. Position of the Respondent
14. In its reply, the Respondent stated that it paid almost all the amounts requested by the
player, and that the remaining amount due to the player was USD 3,000.
15. In this context, the club provided with the following table showing the payments it
performed during the contract:
Salaries
August Salary
Transfer
September Salary
Transfer
October Salary
Transfer
November Salary
Transfer
December Salary
Transfer
Bank check Amount
(BHD)
1,134
1,134
housing fees
Date
There
are
no 05-09-2022
housing fees for the
player’s residence in
the club’s private
residence.
There
are
no 06-10-2022
housing fees for the
player’s residence in
the club’s private
residence.
1,320
10-11-2022
1,384
09-12-2022
1,384
03-01-2023
16. In this regard, the club submitted as supporting evidence 5 cheques issued by the company
“Tumooh Sport Management”, with the amounts mentioned above.
pg. 5
REF. FPSD-11520
17. In addition, the club mentioned that as it terminated the contract, it was obliged to pay the
value of the release clause. Therefore, the club indicated that it paid the following amounts
and provided evidence on this regard:
Salaries
Transaction
Amount (BHD)
January and
February Salary
Transfer
March Salary
Transfer
housing fees
Date
2,768
17-03-2023
1,134
20-04-2023
18. As to the flight tickets, the club stated that it paid the flight for the player’s arrival.
19. In view of the foregoing, the club argued that the player was only entitled to one additional
salary in accordance with the penalty clause inserted in the contract, amounting to USD
3,000.
d. Rejoinder of the Claimant
20. In his rejoinder, the Claimant indicated that he does not recognise the cheques provided
from August 2022 to December 2023, since the documentation provided the player
indicated that (i) the cheques are not from the account of the club, but from a company
named Tumooh Sport Management; (ii) the player did not receive those cheques; (iii) the
cheques contained the name of the player misspelled (i.e., “Sadron” instead of “Sardon”);
and (iv) the cheques contained a signature which does not correspond to the player’s
signature. In view of the foregoing, the player concluded that this evidence cannot be
considered as proof of payment.
21. Regarding the bank payments from January to March, the Claimant acknowledged receipt
of said payments. In view of the foregoing, he amended his request for relief as follows:
-
USD 3,000 as salary plus 5 % interest as from 28 January 2023.
-
USD 3,000 as balance of the compensation plus 5 % interest as from 28 January 2023.
-
USD 7,990 as housing for the 6 months from August 2022 until January 2023 for a
total amount of BHD 3,015.8 plus 5 % interest as from 28 January 2023.
-
USD 1,567 for the return flight ticket plus 5 % interest as from 28 January 2023.
-
To apply sporting sanctions on the club.
e. Final comments of the Respondent
pg. 6
REF. FPSD-11520
22. In its final comments, the Respondent stated the following:
“Based on what the other party relied on, about the Tumooh Sports Management
Company, it is a strategic national partner with the club in paying the players' salaries
and dues, recruiting players, and paying their monthly salaries as an official sponsor
of the club's football teams, as if you notice the player signing the receipt of all bank
checks according to the attached pictures, and if he does not receive He did not return
the check to the company so that it could be changed if he found any error in it. We
also note why the player waited this entire period or return it to us in order to change
it. We would also like to note the commitment to all payments of dues, as shown in
the payments that we disbursed to the player by adding the salary with the housing
expenses. Accordingly, we confirm to you our commitment to disbursing the remaining
salary with the value of the return flight ticket to his hometown.”
pg. 7
REF. FPSD-11520
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
23. 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 28 August 2023 and submitted
for decision on 22 November 2023. 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.
24. 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 par.1 lit. b)
of the Regulations on the Status and Transfer of Players (May 2023 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 Argentinian
player and a Bahraini club.
25. On this point, the Chamber recalled that in accordance with art. 22 par. 1 lit. b) in
conjunction with art. 23 of the Regulations, FIFA is competent to deal with employmentrelated disputes between a club and a player of an international dimension, unless an
independent arbitration tribunal guaranteeing fair proceedings exists at national level. The
wording of the article in question clearly implies that the first condition that needs to be
compulsorily fulfilled in order for FIFA to be competent to hear an employment-related
dispute between a club and a player is that said dispute has an international dimension.
This means that FIFA is only competent to hear an employment-related dispute of such
kind when the parties have different nationalities. By the same token, the DRC noted that
the jurisdiction of FIFA is not challenged by the parties.
26. Entering the analysis of the present dispute, the Chamber first noted from the
documentation on file the player that while the contract listed the player as a citizen of
Bahrein, as confirmed by the BFA, the player is in fact of Argentinian nationality and was
registered as such with the club and the BFA.
27. The jurisprudence of the Chamber shows that in cases where a player has dual citizenship,
his registration is a determining factor when assessing if the international dimension of the
dispute is given, considering that clubs may enjoy benefits in registering a player with a
certain nationality, inter alia, due to the specific limitations in the number of foreign
players.
pg. 8
REF. FPSD-11520
28. Bearing in mind the foregoing, the Chamber observed that in spite of the contents of the
contract, the player is Argentinian and was registered as such with the BFA. In view of the
aforementioned, the Chamber was satisfied that the claim at hand enjoys international
dimension in light of the evidence of file, which denotes that indeed it appears that the
contract contains a clerical mistake with regards to the Claimant’s nationality. It follows that
the Football Tribunal in general and the DRC in particular is competent to entertain the
matter as to the substance.
29. 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 (May 2023 edition) and
considering that the present claim was lodged on 28 August 2023, 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
30. 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
31. 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
32. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim of a player against a club for
breach of contract. In this context, the Chamber acknowledged that its task was to
determine, based on the evidence presented by the parties, whether (a) the claimed
amounts had in fact remained unpaid by the Respondent and (b) the contract was
terminated without just cause by the Respondent, and the consequences that follow.
(i)
Outstanding remuneration
pg. 9
REF. FPSD-11520
33. In doing so, the Chamber indicated that the Respondent was liable to pay until the
termination of the contract (28 January 2023) the following amounts:
-
December 2022 and January 2023 salaries (USD 6,000 in total).
-
Accommodation allowance from August 2022 until January 2023 totalling BHD
3,015.80 or USD 7,990. On this point, the Chamber wished to highlight that the player
is entitled to this amount considering that (i) the accommodation allowance was
contractually stipulated and (ii) the player provided receipts showing that he paid
this amount for the accommodation.
-
The reimbursement of the flight ticket (USD 1,567). The Chamber wished to highlight
that the player is entitled to this amount considering that (i) it was contractually
stipulated, (ii) the player provided evidence as to this flight; and (iii) the Respondent
acknowledged the payment of this ticket.
34. In continuation, the Chamber recalled that in the case at hand the club bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties. Therefore, the Chamber went on to analyse the arguments and evidence
provided by the club. In doing so, the Chamber noted the club presented 5 cheques for the
payments performed between September 2022 and December 2023 and two bank
statements for the payments performed in January and February 2023.
35. With regards to the cheques, the Chamber recalled that the Claimant contested their
veracity. On this point, the Chamber stressed that without entering the discussion whether
the document presented by the player was forged or whether the club effectively provided
the player those cheques; the Chamber considered that the issuance of a cheque does not
sufficiently prove that the amounts were effectively paid to the player, especially when
considered that the cheques were issued by a third party and were disputed by the creditor
as in the case at hand. In fact, the DRC remarked that a cheque constitutes a form of credit,
and therefore cannot amount as proof of payment if not accompanied by the relevant
banking documentation to demonstrate that the amounts described therein were
effectively cashed.
36. Along these lines, the Chamber mentioned that a document that could confirm the
payment of such amounts would be a confirmation of the bank or the club’s bank
statements, however, none of those documents were provided. Likewise, the club did not
advance any evidence of its link with the company which had issued the cheques.
Therefore, the Chamber concluded that the club failed to meet its burden of proof in order
to confirm the alleged payments.
37. In continuation, as to the bank statements, the Chamber noted that the following payments
were acknowledged by the player and consequently, were paid by the club to the player:
pg. 10
REF. FPSD-11520
-
BHD 2,768/approx. USD 7,294.62: said payment in accordance with the Respondent’s
response corresponded to the salaries of January and February 2023.
-
BHD 1,134/approx. USD 2,989.35 said payment in accordance with the Respondent’s
response corresponded to the salary of March 2023.
38. In view of the foregoing, the Chamber concluded that the club only paid January 2023 salary
(USD 3,000), and the remaining amounts were paid as part of the compensation due to the
Claimant.
39. 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 amounts
which were outstanding under the contract at the moment of the termination:
-
USD 3,000 for the salary of December.
-
BHD 3,015.80 as reimbursement of housing expenses.
-
USD 1,567 as the return flight ticket.
40. Lastly, taking into consideration the player’s request, the principle ne ultra petita and the
constant practice of the Chamber in this regard, the latter decided to award the player
interest on said remuneration at the rate of 5% p.a. as of 28 January 2023 until the date of
effective payment.
(ii)
Breach of contract
41. In continuation the Chamber passed to analyse the justice of the early termination of the
contract by the Respondent. On this point the Chamber noted that the Respondent did not
contest or provide any reason as to the early termination of the contract and consequently,
the Chamber concluded that the contract was terminated without just cause.
42. Having stated the above, the Chamber turned to the calculation of the amount of
compensation payable to the player by the club in the case at stake. In doing so, the
Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the
amount of compensation shall be calculated, in particular and unless otherwise provided
for in the contract at the basis of the dispute, with due consideration for the law of the
country concerned, the specificity of sport and further objective criteria, including in
particular, the remuneration and other benefits due to the player under the existing
contract and/or the new contract, the time remaining on the existing contract up to a
maximum of five years, and depending on whether the contractual breach falls within the
protected period.
pg. 11
REF. FPSD-11520
43. In application of the relevant provision, the Chamber held that it first of all had to clarify as
to whether the pertinent employment contract contained a provision by means of which
the parties had beforehand agreed upon an amount of compensation payable by the
contractual parties in the event of breach of contract.
44. In this regard, the Chamber took note of the wording of clause 9.4 of the contract, which
established that: “In case, any wishes to cancel the settled contract during its validity, the party
wishing to end the contract is obliged to pay an amount of 9000/ - USD (Nine thousand only) as
a penalty condition to the other party.”
45. After analyzing the content of the aforementioned clause, the Chamber concluded that it
fulfilled the criteria of reciprocity and proportionality, in line with the longstanding
jurisprudence of the Football Tribunal, and therefore was to be applied in the case at hand
to determine the amount of compensation payable by the Respondent to the Claimant.
46. Consequently, the Chamber decided that the amount of USD 9,000 as per the
compensation clause agreed between the parties to the contract, was to be the amount to
be paid to the player by the club. However, from that amount the Chamber noted that the
club already paid USD 7,283.97 (USD 7,294.62 – USD 3,000 + USD 2,989.35). In view of the
foregoing, the player is entitled to USD 1,716.03 as compensation for breach of contract.
47. Lastly, 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 on said
compensation at the rate of 5% p.a. as of 28 January 2023 until the date of effective
payment.
pg. 12
REF. FPSD-11520
ii. Compliance with monetary decisions
48. 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.
49. 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.
50. 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.
51. 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.
52. 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
53. 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.
54. 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.
55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 13
REF. FPSD-11520
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, José Augusto Sardon, is partially accepted.
2.
The Respondent, Sitra SC, must pay to the Claimant the following amount(s):
- BHD 3,015.80 as outstanding remuneration plus 5% interest p.a. as from 28 January
2023 until the date of effective payment;
- USD 4,567 as outstanding remuneration plus 5% interest p.a. as from 28 January 2023
until the date of effective payment; and
- USD 1,716.03 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 28 January 2023 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 of the ban shall
be of up to 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 art. 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
pg. 14
REF. FPSD-11520
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