DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - CONTROVERSIE DI LAVORO

• Data decisione: 29 settembre 2020 • Stagione sportiva: 2020/2021

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision29 September 2020

Decision of the

Dispute Resolution Chamber

passed on 29 September 2020

regarding an employment-related dispute concerning the player Augusto Matias Fernandez

COMPOSITION:

Omar Ongaro, (Italy), Deputy Chairman

Roy Vermeer, (Netherlands), member

José Luis Andrade, (Portugal), member

CLAIMANT:

Augusto Matias Fernandez, Argentina

Represented by Mr Alejandro Villaverde

RESPONDENT:

Beijing Renhe FC, China PR

I. FACTS

1. On 30 January 2018, the Claimant and the Respondent concluded an employment contract (hereinafter: “the contract”) valid until 31 December 2019.

2. According to article 5 of the contract the Claimant was entitled to receive a total salary amounting to EUR 1,500,000 for each year (2018 and 2019) payable in twelve equal monthly instalments of EUR 125,000 each. The payment date would be the 15th day of the subsequent month.

3. On the same date the Claimant, the Respondent and a private company named “Capital Trade Limited” concluded a “License agreement for the right to use professional football player´s name nickname, voice and image” (hereinafter: “the image rights agreement”) by means of which the private company will pay to the Claimant a net amount of EUR 7,000,000 in 4 instalments, as follows:

- EUR 3,500,000 on 10 February 2018;

- EUR 1,000,000 on 15 July 2018

- EUR 1,500,000 on 10 January 2019

- EUR 1,000,000 on 15 July 2019.

4. The recitals of the image right agreement specified, inter alia, the following:

“CTL is interested in using, both for his use and far !he use of the Club, !he professional player's name, image, nickname and voice for the specific purpose of promoting its brand through campaigns in print, TV or spoken media in order to promete its brand and generate revenues from licensing products, selling advertising space and obtaining sponsorships

(…)

Due to THE PLAYER's employment contract and the possible enhanced use of his image. CTL are interested in paying a fixed amount worth signing the employmenl controct increasing the amount paid for THE PLAYER's image.”

5. Point 4 of the agreement stated that any tax generated or levied in China corresponding to the amounts provided above to the initial assignment of the image rights to the private company shall be borne by the latter and subsidiary by the Respondent.

6. Moreover, point 4 of the agreement provided “… For the avoidance of doubt, should CTL [i.e. the private company] and the Club [i.e. the Respondent] fail to pay the amount agreed to the player, the player shall have the rights to claim such amount against CTL and the Club …”

7. On 6 April 2020, the Claimant lodged a claim against the Respondent requesting the total amount of EUR 975,000, detailed as follows:

- EUR 375,000 as three monthly salaries corresponding to 2019;

EUR 600,000 as outstanding amount related to the image rights agreement which was due on 15 July 2019.

8. In this respect, the Claimant stated that, on 17 February 2020 and 3 March 2020, he sent default notices to the Respondent requesting the above-mentioned outstanding remuneration and granting ten days to remedy the default, to no avail.

9. Moreover, the Claimant argued that the Respondent was “subsidiary guarantor of the payments described under clause 4” of the agreement.

10. In its reply to the claim, the Respondent sustained the following:

“Now the Novel Coronavirus pandemic is still raging around the whole world. Our club was shut down till the end of March. The all divisions of Chinese professional football league are suspended. As a professional football club, we lost our most important source of income, share of the broadcast rights. Even we have not receive the full amount of share of the broadcast and commercial rights of 2019 China Super League. Currently our financial status is very fragile. We promise that once we receive all overdue payments of 2019 China Super League season, we will pay the player Augusto Matias Fernandez the overdue salary and bonus of 2019 immediately”.

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

1. 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. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs such as the present one, which involves an Argentinean player and a Chinese club.

3. In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 6 April 2020, the March 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Dispute Resolution Chamber entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Dispute Resolution Chamber emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the DRC noted that the Claimant presented two different contracts in his claim.

6. In particular, the DRC noted that, on one hand, on 30 January 2018, the Claimant and the Respondent concluded an employment contract valid until 31 December 2019 and that, following article 5 of said contract, the Claimant was entitled to receive a total salary amounting to EUR 1,500,000 for each year (2018 and 2019) payable in twelve equal monthly instalments of EUR 125,000 each.

7. On the other hand, the DRC noted that, on the same date the Claimant, the Respondent and a private company (Capital Trade Limited) concluded a “License agreement for the right to use professional football player´s name nickname, voice and image” (hereinafter: “the image rights agreement”) by means of which the private company will pay to the Claimant a net amount of EUR 7,000,000.

8. In relation to said contract, the Chamber wished to underline that, following art. 22 b) of the Regulations, FIFA is competent to hear employment-related disputes between a club and a player.

9. As a result, with regard to the claimed payments in connection to the image rights the Chamber also had to verify whether it was competent to deal with this specific component or not, i.e. whether said contract was effectively an employment contract between the player and the club..

10. While analyzing whether it was competent to hear this part of the claim, the Chamber, without entering into any discussion regarding the actual wording of the agreement, inter alia, included the following:

(…)

11. After duly examining the contents of the aforementioned provision as well as the entire image rights agreement overall, the Chamber considered that certainly said agreement contained elements which confirmed that it was indeed an image rights agreement, and, as a result, a distinct agreement from the employment contract.

12. In this regard, the DRC recalled that, as a general rule, if there are separate agreements, the longstanding jurisprudence of the DRC considers agreements on image rights as such and does not have the competence to deal with them.

13. Consequently, the Chamber decided not to consider the image rights agreement, as it is not competent to hear about this element of the dispute.

14. This being established, the Chamber returned to the analysis of the claim of the claimant, according to which, the Respondent owed him the total amount of EUR 375,000 as three monthly salaries corresponding to 2019.

15. In this respect, the Chamber noted that a salary of EUR 125,000 per month was properly foreseen in clause 5 of the contract (i.e. 125,000*3=375,000).

16. Conversely, the Chamber noted that, in its reply, implicitly acknowledged its debts, as it referred, in generic terms, to the economic consequences of the COVID-19 pandemic, while it stated that it will settle its debt when possible.

17. In view of the above, the Dispute Resolution Chamber reminded the parties of the contents of art. 12 par. 3 of the Procedural Rules, according to which “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”.

18. In this respect, the Chamber observed that the Respondent did not substantiate with clear and specific evidence its alleged situation of financial hardship, or presented detailed evidence to justify its non-compliance with the financial terms of the contract.

19. Consequently, the Chamber considered that, in accordance with the principle of pacta sunt servanda, that the Respondent shall pay to the Claimant, the amount of EUR 375,000, corresponding to three monthly salaries.

20. Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber referred to par. 1 and 2 of art. 24bis 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.

21. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

22. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

23. Finally, the Dispute Resolution Chamber 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. 24bis par. 3 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Augusto Matias Fernandez, is accepted insofar it is admissible.

2. The Respondent, Beijing Renhe FC, has to pay to the Claimant, Augusto Matias Fernandez, the following amount:

- EUR 375,000 as outstanding remuneration.

3. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

4. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 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 20 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 | psdfifa@fifa.org | T: +41 (0)43 222 7777