Labour Disputes
Texto da decisão
REF FPSD-2838
Decision of the
Dispute Resolution Chamber
passed on 3 November 2021
regarding an employment-related dispute concerning the player Jonathan Cristian
Silva
COMPOSITION:
ONGARO Omar (Italy), Deputy Chairperson
ZAPISOTSKIY Yuriy (Ukraine), member
LUKASEK Peter (Slovakia), member
CLAIMANT:
Player Jonathan Cristian Silva, Argentina
Represented by Mr Nuno Rêgo
RESPONDENT:
Club Sporting CP, Portugal
Page 2
REF FPSD-2838
I.
Facts of the case
1.
On 9 August 2014, the Argentinian player, Jonathan Cristian Silva (hereinafter: player or
Claimant), and the Portuguese club, Sporting CP (hereinafter: club or Respondent) signed an
employment contract (hereinafter: contract 1) valid as from as from the date of signature
until 30 June 2019.
2.
On 25 July 2017, the parties signed a new employment contract (hereinafter: contract 2) valid
as from 1 July 2017 until 30 June 2022.
3.
Art. 12 of contract 2 establishes: “In everything that is not foreseen in this contract, it will
apply to the CCT [CBA] granted between the National Union of Professional Football Players
and the Portuguese Professional Football League.”
4.
Art. 3 of the Collective Bargaining Agreement (hereinafter: CBA) reads as follows: “This CBA
will apply to all footballers and sports clubs or sports societies resident in national territory”.
5.
Art. 9 par. 6 of the CBA states: “Whenever the loan results in the payment of any
compensation to the lending club or sports company, the player will be entitled to receive, if
another more favourable agreement is not stipulated between the parties, 7% of that
amount.”
6.
On 23 December 2015, the Claimant, the Respondent and the Argentinian club, Boca Juniors
concluded an agreement regarding the loan transfer of the player to Boca Juniors until 31
March 2016. Said loan was subsequently extended until 1 August 2017.
7.
The relevant transfer agreement established that Boca Juniors have to pay a loan fee of EUR
100,000 as loan fee to the Respondent by no later than 31 March 2016.
8.
Art. 2.5 of the loan agreement stipulates: “The player expressly assumes that he has nothing
to claim from Sporting CP concerning any unpaid salary or bonus due until the signature of
the present loan from the labor contract concluded between parties, or any due
compensation concerning the present loan. […]. The player also recognizes that during the
loan period Sporting CP shall not be entitled to perform any payment (salary, bonuses or
whatsoever) to the player.”
9.
On 31 August 2018, the Claimant, the Respondent and the Italian club, AS Roma, concluded
an agreement regarding the loan transfer of the player to AS Roma until 30 June 2018.
10. The relevant transfer agreement established that AS Roma have to pay a loan fee of EUR
500,000 to the Respondent by no later than 15 February 2018.
Page 3
REF FPSD-2838
11. Art. 2.6 of the loan agreement stipulates: “The player expressly assumes that he has nothing
to claim from Sporting CP concerning any unpaid salary or bonus due until the signature of
the present loan from the labor contract concluded between parties, or any due
compensation concerning the present loan. […]. The player also recognizes that during the
loan period Sporting CP shall not be entitled to perform any payment (salary, bonuses or
whatsoever) to the player.”
12. On 26 July 2018, the Claimant, the Respondent and the Spanish club, Leganes, concluded an
agreement regarding the loan transfer of the player to Leganes until 30 June 2019.
13. The relevant transfer agreement established the following payments from Leganes the
Respondent:
- EUR 200,000 as loan fee until 31 August 2018;
- EUR 100,000 until 30 June 2019 as conditional fee in case the player “plays 18 games a
starting player in La Liga” and if Leganes stays in the Spanish first division”;
- EUR 100,000 until 30 June 2019 as conditional fee in case the player “plays more than
10 games as a starting player and if Leganes stays in the Spanish first division”.
14. Art. 2.6. of the relevant loan transfer agreement reads as follows: “The player expressly
assumes that he has nothing to claim from Sporting CP concerning any unpaid salary or bonus
due until the signature of the present loan from the labor contract concluded between
parties, or any due compensation concerning the present loan. […]. The player also recognizes
that during the loan period Sporting CP shall not be entitled to perform any payment (salary,
bonuses or whatsoever) to the player.”
15. The relevant loan transfer agreement included an option for Leganes to permanently acquire
the services of the player for a transfer fee of EUR 3,000,000, payable in instalments.
16. On 31 May 2019, the Claimant, the Respondent and the Spanish club, Leganes, concluded
an amendment agreement, according to which Leganes would trigger its option to transfer
the player on a permanent basis.
17. In said agreement, the parties amended the payments resulting from the loan transfer
agreement, inter alia, as follows:
- EUR 100,000 until 6 June 2019 as conditional fee in case the player “plays 18 games a
starting player in La Liga” and if Leganes stays in the Spanish first division”;
- EUR 100,000 until 6 June 2019 as conditional fee in case the player “plays more than 10
games as a starting player and if Leganes stays in the Spanish first division”.
18. On 21 May 2021, the Claimant put the Respondent in default and requested payment of EUR
70,000 in connection with art. 9 par. 6 of the CBA in connection with the loans of the player.
Page 4
REF FPSD-2838
II. Proceedings before FIFA
19. On 17 June 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
20. The Claimant lodged a claim against the Respondent in front of FIFA and requested payment
of EUR 70,000 plus 5% interest p.a. as of the due dates, in connection with art. 9 par. 6 of
the CBA in connection with the loans of the player.
21. In detail, the claimed amount corresponds to:
- EUR 7,000 resulting from loan 1 (7% of EUR 100,000 as loan fee);
- EUR 35,000 resulting from loan 2 (7% of EUR 500,000as loan fee);
- EUR 28,000 resulting from loan 3 (7% of EUR 400,000; loan fee plus conditional payments).
22. In his claim, the player argued that the CBA is applicable due to the direct reference in the
employment contract and Art. 25 par. 6 RSTP as well as Art. 2 of the Procedural Rules.
23. The player submitted statistics showing that he started in 30 games of the season 2018/2019
for Leganes and that the club was not relegated.
b. Position of the Respondent
24. In its reply, the Respondent rejected the claim.
25. First of all, the Respondent referred to Art. 25 par. 5 RSTP and held that the claim is timebarred as more than two years have elapsed since the payments were due from which the
player wants to participate.
26. Furthermore, the Respondent pointed out that art. 9 par. 6 of the CBA is not mandatory and
that the player waived his entitlement in all three loan agreements. In this respect, the
Respondent referred to art. 2.5 of the agreement for loan 1, art. 2.6 of the agreement for
loan 2 and art. 2.6 of the agreement for loan 3.
Page 5
REF FPSD-2838
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 June 2021 and submitted for decision
on 3 November 2021. 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. 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 Argentinian player
and a Portuguese club.
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 Player (August 2021 edition), and
considering that the present claim was lodged on 17 June 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
30. Moreover, as a further preliminary issue, the Chamber analysed if the claim could be timebarred, as alleged by the Respondent.
31. The members of the Chamber recalled the content of art. 25 par. 5 of the Regulations, which
read as follows: “The relevant FIFA decision-making body shall not hear any case subject to
these regulations if more than two years have elapsed since the event giving rise to the
dispute. Application of this time limit shall be examined ex officio in each individual case.”
32. Subsequently, the DRC examined the events giving rise to the dispute and determined that
the due dates of the claimed payments are as followed:
- Loan 1: EUR 100,000 due on 31 March 2016;
- Loan 2: EUR 500,000 due on 15 February 2018;
- Loan 3: EUR 200,000 due on 31 August 2018 (loan fee);
- Conditional payments of loan 3: initially due on 30 June 2019, but due to amendment
due on 6 June 2019.
33. On account of the above, the Chamber established that that all the payments were due more
than two years before the claim was lodged (17 June 2021) and therefore, in accordance
with art. 25 par. 5 RSTP, the DRC declare the claim time-barred.
Page 6
REF FPSD-2838
34. In consideration of the foregoing, the Chamber concluded that the Claimant’s claim before
the FIFA DRC is inadmissible.
b. Costs
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
Page 7
REF FPSD-2838
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Jonathan Cristian Silva , is inadmissible.
2. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8
REF FPSD-2838
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
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 9