Labour Disputes
Texto da decisão
REF. FPSD-12772
Decision of the
Dispute Resolution Chamber
passed on 4 April 2024
regarding an employment-related dispute concerning the player Bruno da
Silva Peres
COMPOSITION:
Frans DE WEGER (The Netherlands), Chairperson
Peter LUKASEK (Slovakia), Member
Dana MOHAMED AL-NOAIMI (Qatar), Member
CLAIMANT:
Bruno da Silva Peres, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Trabzonspor AS, Türkiye
Represented by Duygu Yaşar
pg. 2
REF. FPSD-12772
I. Facts of the case
The Parties
1.
The parties to this dispute are the Brazilian player Bruno da Silva Peres (hereinafter: Player
or Claimant) and the Turkish club Trabzonspor AS (hereinafter: Club or Respondent).
2.
The Player and the Club are hereinafter jointly referred to as Parties.
The employment relationship between the Parties
3.
On 16 June 2021, the Parties concluded an employment contract valid as from 1 July 2021
until 31 May 2024 (hereinafter: Employment Contract).
4.
Pursuant to the Employment Contract, the Player would be entitled inter alia to EUR
1,200,000 net per season, plus a sign-on fee and contingent payments depending on
sporting goals.
5.
On 11 February 2023, the Player (a) put the Club in default for outstanding remuneration
amounting to EUR 600,000 and (b) requested the breach to be cured within 15 days.
6.
On 15 February 2023, the Club replied to the Player’s letter. Contextually, the Club
acknowledged its default and made an offer for higher payment, however in instalments.
7.
On 27 April 2023, the Parties decided to terminate the Employment Contract and entered
into a Mutual Termination Agreement (hereinafter: Termination Agreement).
8.
Pursuant to clause 3.1 of the Termination Agreement, the Club undertook to pay to the
Player the total amount of EUR 1,600,000, as follows:
•
•
•
•
•
•
9.
EUR 300,000 net by 25 May 2023;
EUR 300,000 net by 3 July 2023;
EUR 300,000 net by 1 October 2023;
EUR 200,000 net by 30 November 2023;
EUR 200,000 net by 29 March 2024;
EUR 300,000 net by 15 May 2024.
Clause 3.3 of the Termination Agreement reads as follows:
“3.3. In the event the CLUB fails to comply with the payment of any of the instalments of
the TERMINATION AMOUNT within 30 (thirty) days following the due dates set out above
the PARTIES herein agree to establish a so-called ‘acceleration clause’. In other words, all
the outstanding and remaining instalments of the TERMINATION AMOUNT shall become
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REF. FPSD-12772
due and payable immediately. Furthermore, a penalty of 10% (ten) and a default interest
of 5% (five) per annum shall accrue on the TERMINATION AMOUNT as from the due date
until the date of payment”.
In parallel, the civil proceedings involving the Player
10. According to the documentation on file, the Player is a party to a civil claim filed by the
Italian company, Baltica SPV SRL (hereinafter: Baltica) before the Civil Court of Rome under
ref. no. 643-2023 (hereinafter: Civil Claim).
11. It is established that Baltica holds a credit against the Player for an amount of around EUR
500,000, plus interests, legal costs, VAT, and general expenses – in virtue of a payment
order issued by the same court on 11 April 2022.
12. Furthermore, on 27 October 2022, a writ of execution was served on the Player for a total
amount of EUR 541,403.23. As a consequence, third-party orders (“writ of attachment”)
were addressed by the Civil Court of Rome to inter alia the Club in January and September
2023 apparently giving instructions concerning the submission of a declaration of credits
connected to the Player and pending payments.
13. On 24 October 2023, the Club wrote to the Civil Court of Rome and stated as follows, in
verbis:
“In accordance with your letters numbered as in ref. a and ref. b which were sent to the
[Club] due to the case being heard between [the Player] and [Baltica], it has been stated
that in case [the Player] has any progress payments from the [the Club] the amount of
541,403.23 Euros of these progress payments has been sequestrated over the judgement
specified in the file number above and it has been requested to provide a declaration
regarding this situation.
We hereby state that the attachment notice sent by your court has been entered into the
client's records, that [the Player] has a receivable as of the-date of notification of the
attachment notice to the [the Club], and that your attachment order has been processed
for the 541,403.23 Euro portion of this amount specified in the content of the writ of
execution.
Furthermore, we respectfully request and demand that the [Club] notify [the Player] and
his attorney individually regarding the fact that 541.403.23 Euros of [the Player’s]
receivable has been blocked.
Sincerely. we submit for your information”.
14. On 31 October 2023, the Player sent an email to the Club stating as follows, in verbis:
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REF. FPSD-12772
“On 26.10.2023, [Baltica] sent [the Player] via email a copy of an order issued by the
Civil Court of Rome, section III securities enforcement re n. 643/2023, dated 22 May 2023.
The aforementioned provision of the Civil Court of Rome was notified to this company on
13.07.2023 and was made as part of an enforcement procedure initiated by Baltica SPV
srl to the detriment of Mr. Bruno Da Silva Peres, in which he holds the role of third seized
this company.
With the aforementioned provision, the Civil Court of Rome, having noted that
Trabzonspor did not make the third party declaration for the hearing on 22 May 2023,
required Baltica SPV srl to notify this Company of the foreclosure deed with the order
and the supplementary deed to the seizure providing that, if at the hearing on 29
November 2023 the football club does not appear and does not make the third party's
declaration that it is in possession of sums due to Bruno Da Silva Peres, the seized credit
will be considered uncontested.
To be executed in Turkey, sentences and measures rendered by Italian Courts must be
subjected to an internal procedure (so-called exequatur) by competent Turkish Courts.
Since it does not appear that the sentence and the measures implemented by Baltica SPV
srl, against Trabzonspor have been subjected to an internal exequatur procedure,
Trabzonspor is hereby invited and warned to implement any initiative aimed at asserting
the non-opposability to itself of provisions rendered by an Italian judge that cannot be
enforced in Turkey, refraining from the sums due to Bruno Da Silva Peres by virtue of
rulings that cannot be enforced in the Turkish Republic.
In the interest of Bruno Da Silva Peres it is noted that, if Trabzonspor decides to take
initiatives aimed at countering the claim of Baltica SPV srl or provides, in the absence of
legal prerequisites, to pay sums of hopes of Bruno Da Silva Pares I consequently cause
economic damage to Mr. Bruno Da Silva Peres, the latter will be forced to initiate any
appropriate action towards the football club in order to obtain compensation for the
economic damage resulting from his conduct”.
15. On 10 November 2023, the Club replied to the abovementioned email from the Player as
follows, in verbis:
“In the notice of levy sent to [the Club] through the file 643/2023 r.g.e. (execution general
registration file) of the 3rd Division of the Civil Court of Rome, where [Baltica] is the
plaintiff/creditor and [the Player] is the defendant/debtor, it was asked whether [the
Player] had any progress payments from [the Club], and if he had, it was reported that
the amount of EUR 541.403,23 of these progress payments was attached/blocked at the
conclusion of the proceedings specified in the file number above.
pg. 5
REF. FPSD-12772
There is a 1926 dated ‘Convention between Turkey and Italy on Judicial Protection,
Mutual Assistance of Judicial Authorities in Civil and Criminal Matters and Recognition
and Enforcement of Judicial Decisions’, which was entered into force on 15/05/1931 after
being published in the Official Gazette dated 03/03/1929 and numbered 1133 and
ratified by the Law numbered 1394 and dated 16/02/1929.
In accordance with the provisions of the above-mentioned convention between Turkey
and Italy, we respectfully inform you that the notice of levy sent to [the Club] has been
registered in the records of [the Club] and that as of the date of notification of the notice
of levy, [the Player’s] receivable of 300.000 Euros has been blocked in accordance with
the relevant court decision, and that on the next progress payment date, 241.403,23
Euros of his receivable will be blocked and the remaining part will be paid to [the
Player]”.
II. Proceedings before FIFA
16. On 21 November 2023, the Player filed the claim at hand before FIFA. A brief summary of
the position of the Parties is detailed in continuation.
a. Claim of the Player
17. In his claim, the Player recalled the negotiations between the Parties and the events that
preceded the signature of the Termination Agreement. Furthermore, he pointed out to the
fact that the Club repetitively failed to honour its financial duties, reason why he decided
to seek relief before FIFA.
18. In particular, the Player stressed that the Club only paid the two first instalment of the
Termination Agreement. Consequently, by leaving the third instalment unpaid for more
than 30 days, the acceleration clause was triggered, and the Club became liable to pay him
the following amounts, which he requested to be awarded:
•
•
the residual amount of EUR 1,000,000 plus 5% interest as from 2 October 2023; and
the contractual penalty of EUR 160,000 plus 5% interest as from 2 October 2023.
b. Reply of the Club
19. On 18 December 2023, the Club filed its reply to the claim.
20. In its reply, the Club filed evidence concerning the Civil Claim. In doing so, it argued that
despite having complied with the payment of the two first instalments of the Termination
Agreement, it was prevented from paying the remaining amount. In fact, the Club stressed
that the amounts owed to the Player were “blocked” as a result of the restriction order by
the Court of Rome, in verbis:
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REF. FPSD-12772
“11. As a result, the Club blocked the amount ordered to be blocked by the preliminary
injunction under threat of attachment and notified that to the Civil Court of Rome and
the Player (Annexe-4 and Annexe-5).
12. This is due to Law 1394 (Annexe-6), which the Club was reminded of by the competent
authorities in Turkiye. The Club has blocked the amount ordered by the Civil Court of
Rome on the grounds that if the award is subsequently enforced in compliance with the
aforementioned legislation, the Club will be deemed to be in possession of that amount
and will be obliged to remit that amount once again to the creditor.
13. As a result, the non-payment to the Player cannot be deemed a violation of pacta
sund servanda; rather, it is the result of a judge's decision that the Player was informed
of from the outset.
14. Under these conditions, it is not possible to assert that the Club has breached the
Agreement”.
21. The Club also added, in this respect:
“19. It is unreasonable to expect the Respondent to assume the risk of duplicate payments
for a debt that a State Court has ordered blocked and which the player does not even
deny exists.
20. The treaty on reciprocal assistance of judicial authorities in civil and criminal
proceedings, as well as the enforcement of judicial decisions between Turkey and Italy, is
stipulated in Law o. 1394, which was published in 1929.
21. The Respondent has blocked the amount requested by the Rome Civil Court to be
blocked due to the Player as a preliminary injunction. This is due to the fact that should
the judgment be subsequently enforced in compliance with the aforementioned
legislation, the Club would be considered to be in possession of the sum and would be
obligated to reimburse the creditor once more.
22. Given the aforementioned conditions, the non-payment to the Player cannot be
deemed a violation of pacta sun[t] servanda; on the contrary, it was due to a judge's
ruling that the Player was promptly informed of.”
22. In conclusion, the Club alleged that: “The Respondent cannot be held in breach of the
[Termination Agreement] on account of the writ of attachment issued by the Roma Civil Court,
which orders the Respondent to impede the Player's receivables; therefore, the file should be
closed accordingly”.
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REF. FPSD-12772
c. Rejoinder of the Player
23. On 18 January 2024, the Player filed his rejoinder in the case at hand.
24. The Player initially challenged the documentation filed by the Club in connection with the
Civil Claim. He argued, in this respect, that the evidence submitted by the Club is unclear
and insufficient to the assessment by the Football Tribunal. Furthermore, the Player
explained that the decision by the Civil Court of Rome is under appeal, therefore shall not
be taken into consideration.
25. Secondly, the Player outlined that the Club was already aware of the Civil Claim when in
concluded the Termination Agreement, hence cannot rely on its existence to depart from
its financial obligations (venire contra factum proprium). The Player also added that the
compensation in the Termination Agreement exceeds the amount allegedly blocked in the
context of the Civil Claim – therefore suggesting that there was no real impossibility to pay.
26. Thirdly, the Player stressed that the FIFA regulations and the lex sportiva should prevail in
the analysis of the case at hand. He referred to the jurisprudence of the Football Tribunal
to this extent and alleged that the there was no reason for the Dispute Resolution Chamber
to depart from its standard practice.
27. Fourthly and notwithstanding all the above, the Player also stressed that in any scenario
the decision of the Court of Rome “[...] is not final and binding as it has been appealed.
Moreover, no procedure of exequatur has even started in front of the courts of Turkey, even less
been rendered. Notably, the Club was only apprised of the Civil Court of Rome's decision through
communication from the Ministry of Justice of Turkey, not from any Turkish judicial authority”.
28. In light of the above, the Player ratified his requests for relief as per his statement of claim.
d. Final comments of the Club
29. On 25 January 2024, the Club filed its final comments on this matter. In doing so, the Club
firstly acknowledged that the Player confirmed the existence of the Civil Claim, hence
argued that he bore the burden of proving that the decision was not enforceable.
30. Because the Club disputed its obligation to pay the instalments due in October and
November 2023, it also argued that the acceleration clause included in the Termination
Agreement was not triggered. Consequently, the Club underlined that the amount pending
is lower that the one withheld due to the Civil Claim.
31. In addition, the Club insisted that it has blocked the amount owed to the Club, however
without filing any evidence in this respect. In particular, the Club alleged, in verbis:
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REF. FPSD-12772
“29. The Respondent remitted the Player's instalments in a timely manner until receipt of
the second attachment notice. The Respondent has blocked the amount requested by the
Rome Civil Court to be blocked due to the Player as a preliminary injunction. This is due
to the fact that should the judgment be subsequently enforced in compliance with the
aforementioned legislation, the Club would be considered to be in possession of that sum
and would be obligated to reimburse the creditor once more. It is unreasonable to expect
the Respondent to assume the risk of duplicate payments for a debt that a State Court
has ordered blocked and which the Player does not deny deny exists”.
32. The Club reiterated that the claim should be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
33. First of all, the Dispute Resolution Chamber (hereinafter: 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 November 2023 and submitted for
decision on 4 April 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: Procedural
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
34. Furthermore, 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 (February 2024 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 a Brazilian player
and a Turkish club.
35. 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 (February 2024 edition) and
considering that the present claim was lodged on 21 November 2023, the May 2023 edition
of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
36. 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
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REF. FPSD-12772
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
37. 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
38. 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 for overdue payables based on
the Termination Agreement.
39. The DRC acknowledged that it remained undisputed between the Parties that the Club
failed to pay to the Player the second and the third instalments of the Termination
Agreement. Nevertheless, the Parties strongly dispute whether there was a valid reason
for such default, as follows:
•
On one hand, the Player argues that the payment should have been made by the
Club on a timely fashion, the failure of which triggered the acceleration and penalty
clauses.
•
On the other hand, the Club claims that it was prevented from making the payment
to the Player due to a restriction order imposed by the Civil Court of Rome on the
Player in the context of the Civil Claim. In particular, the Club stresses that the
amount owed to the Player was blocked, as it could not be paid under penalty of
breaching the ruling of such body.
40. In this context, the DRC considered that its task is to establish whether the argumentation
of the Club concerning the impossibility to make the payments is grounded and the ensuing
consequences.
41. With the above in mind, the Chamber initially turned its attention to the documentation
provided by the Club in support of its narrative. In doing so, the DRC concurred with the
Player to the degree that the evidence on file is indeed limited and it does not allow for
complete overview of the case. Further, the Chamber outlined that the exhibits advanced
by the Club make reference to multiple dates, parties and orders, which were also not
properly explained, to the Club’s detriment.
pg. 10
REF. FPSD-12772
42. Having carefully analysed the file, the Chamber could only establish that (i) the Player
apparently owes an amount of approx. EUR 541,403.23 to Baltica; (ii) such debt was
communicated to a list of entities to which the Player was a creditor, including but not
limited to the Club; (iii) the said entities were required to undertake some procedural steps
in light with the Italian law, such as filing a specific type of declaration; and (iv) such debt is
still pending. Nevertheless, the DRC could not precise whether the Club submitted the
relevant declaration, as well as whether it was in fact invited to pay such amounts to a
specific bank account and/or to block any deliverables to the Player, such as claimed by the
Club.
43. The Chamber highlighted that the only supporting evidence filed by the Club besides the
orders issued by the Court of Rome was the copy of the Law No.1394, which however was
also not conclusive per se. Without concrete explanations of the Club on this matter, the
DRC was of the opinion that the mere reference to the legal diploma had no bearing in its
analysis.
44. Equally important, in the Chamber’s view, was the fact that the Club acknowledged that the
decision of the Civil Court of Rome was under appeal and did not advance any counterargumentation in this regard. Consequently, the DRC found it uncertain whether any of the
orders filed by the Club in fact stands to date. Likewise, the Chamber remarked that: (i) the
Termination Agreement was concluded after the decision had been communicated to the
Club in the context of the Civil Claim; (ii) the Parties did not provide for any contractual
remedy in the Termination Agreement and, to the contrary, some of the instalments were
even paid by the Club to the Player; and (iii) the Club did not advance evidence that it tried
to seek information with the Player or the Italian judicial authorities, let alone that it tried
to find an amicable solution in this respect.
45. On top of the above, the Chamber found it decisive that despite alleging in multiple
opportunities that the amount owed to the Player was “blocked” (hence could not be paid),
the Club did not submit any proof in this respect (i.e., bank statement, deposit in escrow
account, payment receipt to Italian authorities). The DRC stressed that such confirmation
would be of utmost importance to support the Club’s position that it was indeed complying
with a restrictive order in good faith – and not simply evading from its financial obligations.
46. Based on all the abovementioned considerations, the DRC decided that the argumentation
of the Club could not succeed, therefore the Player should be entitled to the outstanding
remuneration sought on the basis of the principle of pacta sunt servanda.
47. In particular, the Chamber confirmed that the acceleration / penalty clause was
successfully triggered entailing that the Player should be awarded the entire residual
remuneration, plus interests, and the contractual penalty, as follows:
•
EUR 300,000 net plus 5% interest p.a. as from 2 October 2023;
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REF. FPSD-12772
•
EUR 700,000 net plus 5% interest p.a. as from 1 November 2023;
•
EUR 160,000 net as contractual penalty (i.e., 10% of the “termination amount”), also
deemed reasonable and proportionate in line with the DRC’s jurisprudence.
48. In conclusion, the Chamber ruled the claim of the Player partially accepted, with the
difference limited to the dies a quo for the interest. The DRC also established that no
interest should be applied over the penalty (ne bis in idem).
ii. Compliance with monetary decisions
49. 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.
50. At this point and for the sake of completeness, the DRC highlighted that the Club could not
establish that it was indeed prevented from paying any amounts to the Player, reason why
it expressly confirmed that art. 24 of the Regulations should be applied in the case at hand.
51. Subsequently, 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.
52. Therefore, bearing in mind the above, the DRC decided that the Club must pay the full
amount due (including all applicable interest) to the Player within 45 days of notification of
the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
53. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
54. 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.
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REF. FPSD-12772
d. Costs
55. 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.
56. 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.
57. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the Parties.
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REF. FPSD-12772
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Bruno da Silva Peres, is partially accepted.
2.
The Respondent, Trabzonspor Futbol, must pay to the Claimant the following amount(s):
-
EUR 300,000 net as outstanding remuneration plus 5% interest p.a. as from 2
October 2023 until the date of effective payment;
-
EUR 700,000 net as outstanding remuneration plus 5% interest p.a. as from 1
November 2023 until the date of effective payment; and
-
EUR 160,000 net as contractual 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, 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
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REF. FPSD-12772
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
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