Labour Disputes
Texto da decisão
REF FPSD-4623
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Santiago
Vergini
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Elvis Chetty (Seychelles), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Santiago Vergini, Argentina
Represented by Santiago Liotta
RESPONDENT:
Bursaspor Kulubu, Turkey
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REF FPSD-4623
I.
Facts of the case
1.
On 28 August 2018, the Argentinian player, Santiago Vergini (hereinafter: Claimant or player)
and the Turkish club, Bursaspor Kulubu (hereinafter: Respondent or club) signed an
employment contract valid as of 28 August 2018 until 31 May 2020.
2.
On 26 June 2019, the parties concluded a termination agreement.
3.
On 13 August 2020, the Dispute Resolution Chamber took a decision in a dispute between
the parties (Ref. no. 20-00725) and decided that the Respondent had to pay the total amount
of USD 437,500 to the Claimant.
4.
On 9 July 2021, the parties concluded a settlement agreement, according to which the
Respondent undertook to pay the Claimant the total amount of USD 575,000, as follows (art.
2.1 of the settlement agreement):
USD 65,000 upon signature of the agreement;
USD 25,000 on 15 October 2021;
USD 25,000 on 15 November 2021;
USD 25,000 on 15 December 2021;
USD 435,000 on 15 September 2022.
5.
Furthermore, the settlement agreement establishes:
“3.2 In the case that the any of the payments mentioned on 2.1. are not in the account
determined by Vergini in this settlement agreement by the due dates, an immediate and
automatic penalty clause of USD 100,000 will be applied automatically without the need for
any prior notification.”
“3.3 In the case that the payments mentioned on 2.1. are not made on time, Bursaspor hereby
commits to pay a 18% interest per annum, counted from the date after the failed payment
until the date of effective payment and the FIFA ruling will continue to be applicable and
enforceable.”
6.
According to the player, he contacted the Respondent on “several occasions via telephone
and email claiming the overdue payments”, to no avail.
II. Proceedings before FIFA
7.
On 21 December 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
8.
In his claim, the Claimant requested payment of USD 610,000 along with 18% interest p.a.
as of the due dates.
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9.
In this context, the player held that the Respondent remitted the first instalment of the
settlement agreement, but failed to remit any other instalment.
10. Therefore, the Claimant requested payment of all the residual instalments (USD 510,000) as
well as the penalty payment (USD 100,000) agreed in art. 3.2. of the settlement agreement.
11. Furthermore, the Claimant maintained that art. 12bis shall apply.
b. Position of the Respondent
12. In its reply, the Respondent rejected the claim.
13. The Respondent argued the instalment of USD 435,000 is not due yet and shall therefore not
be awarded.
14. Moreover, the Respondent maintained that the penalty is disproportionate and shall be
disregarded.
15. Additionally, the Respondent held that art. 12bis cannot apply, since no default notice was
sent.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. 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 21 December 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.
17. 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 (March 2022 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 Turkish club.
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18. 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 21 December 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
19. 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
20. 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
21. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the main question of the dispute is if the player is entitled to
the payments resulting from the settlement agreement as well as the penalty.
22. The Chamber noted that the Claimant requested payment of the USD 610,000,
corresponding to the residual amount of the settlement agreement (USD 510,000) and the
penalty (USD 100,000), agreed in art. 3.2. of the settlement agreement.
23. The Respondent rejected the claim and held that the amount of USD 435,000 has not yet
fallen due and cannot be awarded. Further, the Respondent maintained that the penalty is
disproportionate and shall be disregarded.
24. The Chamber noted that the Respondent did not dispute that it failed to remit three
instalments agreed upon in the settlement agreement. Therefore, in accordance with claim
and the settlement agreement, the DRC decided to award the amount of USD 75,000,
corresponding to the three instalments falling due between 15 October 2021 and 15
December 2021.
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25. Nevertheless, the members of the Chamber wished to emphasize that no acceleration clause
was included in the settlement agreement and that therefore the last instalment of USD
435,000 has not yet fallen due. Therefore, the DRC decided to reject this part of the claim.
26. Subsequently, the DRC moved to the penalty clause contained in art. 3.2. of the settlement
agreement.
27. In this regard, the Chamber wished to recall the jurisprudence of the Football Tribunal that
penalty clauses, in principle, may be freely entered into by the contractual parties and may be
considered acceptable, in the event that the pertinent written clause meets certain criteria
such as proportionality and reasonableness. Accordingly, it shall be added that in order to
determine as to whether a penalty clause is to be considered acceptable, the specific
circumstances of the relevant case brought before the deciding body shall also be taken into
consideration.
28. The members of the Chamber concluded that, in the specific case at hand, a penalty of USD
100,000 compared to the settlement amount of USD 575,000 appears to be proportional
and reasonable. Therefore, the DRC decided to award the amount of USD 100,000 as a
penalty to the Claimant.
29. Finally, the DRC established that art. 12bis of the Regulations shall not apply, as there is no
default notice on file.
ii. Consequences
30. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amount of
USD 75,000, corresponding to the three instalments resulting from the settlement
agreement, as well as the amount of USD 100,000, corresponding to the penalty agreed
upon between the parties.
31. Furthermore, the Chamber decided to award interest of 18% p.a. on the amount of USD
75,000, in accordance with art. 3.3. of the settlement agreement as of the respective due
dates.
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iii. Compliance with monetary decisions
32. 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.
33. 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.
34. 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.
35. 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.
36. 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
37. 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.
38. 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.
39. 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, Santiago Vergini, is partially accepted.
2.
The Respondent, Bursaspor Kulubu, has to pay to the Claimant, the following amount(s):
- USD 25,000 as outstanding amount plus 18% interest p.a. as from 16 October 2021 until
the date of effective payment;
- USD 25,000 as outstanding amount plus 18% interest p.a. as from 16 November 2021 until
the date of effective payment;
- USD 25,000 as outstanding amount plus 18% interest p.a. as from 16 December 2021 until
the date of effective payment;
- USD 100,000 as penalty.
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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.
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
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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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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