F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 13 August 2020
Decision of the
Dispute Resolution Chamber
passed on 13 August 2020,
regarding an employment-related dispute concerning the player Santiago Vergini
COMPOSITION:
Geoff Thompson (England), Chairman
Alexandra Gómez Bruinewoud (Uruguay/the Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Santiago Vergini, Argentina
Represented by Mr Santiago Liotta
RESPONDENT:
Bursaspor Kulubu Dernegi , Turkey
Represented by Mr Selin Kirmikil
I. FACTS OF THE CASE
1. On 28 August 2018, the Argentinian player, Santiago Vergini (hereinafter: Claimant or player) and
the Turkish club, Bursaspor Kulubi Dernegi (hereinafter: Respondent or club) signed an employment
contract (hereinafter: contract) valid as of 28 August 2018 until 31 May 2020.
2. In said contract, the parties agreed upon remuneration as follows:
3. On 26 June 2019, the parties concluded a termination agreement and mutually agreed to terminate
the contract by agreeing on the following financial terms:
4. The Claimant maintained that during the duration of the employment contract, the following
amounts remained outstanding:
- USD 60,000 as salary due in February 2019;
- USD 60,000 as salary due in March 2019;
- USD 60,000 as salary due in April 2019;
- USD 60,000 as salary due in May 2019;
- USD 50,000 as “collective bonus” due in May 2019;
- USD 60,000 as “game bonuses” due in May 2019.
5. On 25 September 2019 and 21 October 2019, the Claimant sent a letter to the Respondent,
requesting the payment of USD 229,687.50, corresponding to the 50% of the outstanding
remuneration arising from the contract as well as USD 43,750 for the agreed fine and USD 10,937.50
for the interest, granting the Respondent time to remedy its default, to no avail.
6. On 1 November 2019, the Respondent sent a letter to the Claimant, requesting a different payment
schedule. In said letter, the Respondent acknowledged that it owes the amount of USD 350,000.
On the same date, the Claimant “counter-proposed” yet another payment schedule.
7. On 7 November 2019, the Claimant sent a letter to the Respondent, requesting the total amount of
USD 482,917.96 as stipulated in the termination agreement, i.e.:
8. In March 2020, the parties tried to renegotiate the terms of the payment and tried to reach a new
settlement agreement, to no avail.
9. On 6 April 2020, the Claimant sent a letter to the Respondent, requesting the amount of USD
586,989.81, corresponding to the amounts established in the termination agreement.
10. Between 27 April 2020 and 29 April 2020, the Parties tried to settle the present matter amicably, to
no avail.
11. On 13 May 2020, the Claimant lodged a claim in front of FIFA, requesting payment of the USD
616,339.30 resulting from the termination agreement and interest of 5% “cumulative monthly
interest”, as of the respective due dates. Furthermore, the Claimant requested payment of payment
of USD 20,000 as “legal fees”.
12. In its reply to the claim, the Respondent rejected the Claimant’s claim and argued that the “penalty”
agreed upon “was excessive”.
13. Furthermore, the Respondent held that the non-fulfilment of the settlement agreement had been
orally approved by the Claimant. As such, the Respondent deemed that said oral approval should be
considered as binding.
14. In addition, the Respondent sustained that the outstanding main amount did not equal EUR 350,000,
but less in accordance with the payment proofs provided.
15. Finally, the Respondent deemed that the penalty and interest as requested by the Claimant are clearly
disproportionate and should be rejected.
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. In this respect, it took note that the present
matter was submitted to FIFA on 13 May 2020 and submitted for decision on 13 August 2020. 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed 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 (edition August 2020), 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.
3. In continuation, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, the DRC confirmed that in accordance with art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (August 2020 edition), and considering that the
claim was lodged on 13 May 2020, the March 2020 edition of the aforementioned regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance
4. The competence of the Chamber and the applicable regulations having been established, the
Chamber entered into the substance of the matter. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. 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.
5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the
present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par.
3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof.
6. First of all, the members of the Chamber acknowledged that, on 28 August 2018, the player and the
club had concluded an employment contract valid as from the date of its signature until 31 May 2020,
which was mutually terminated on 26 June 2019 by a termination agreement.
7. Furthermore, the Chamber acknowledged that according to said termination agreement “50% of the
outstanding payments” would be paid on 1 September 2019 and “50% of the outstanding payments”
on 1 November 2019.
8. Moreover, the DRC noted that the parties agreed upon a penalty fee as well as interest of “5%
cumulative per month” in said termination agreement (cf. point I.3. above).
9. Furthermore, the members of the DRC took note of the player’s claim maintaining that the
outstanding remuneration referred to in the termination agreement amounted to USD 350,000. In
this framework, the player requested payment of his outstanding dues as well as the penalty, i.e. USD
616,339.30, plus 5% monthly interest and USD 20,000 for “legal fees”.
10. Subsequently, the members of the DRC took note that the club, for its part, rejected the claim, argued
that the outstanding amount referred to in the termination agreement was not USD 350,000 and
pointed out that the penalty and the interest were excessive and disproportionate.
11. On account of the above, the Chamber started analysing the termination agreement, which is at the
base of the dispute. In this regard, the DRC noted that the termination agreement mentions
“outstanding payments” without specification.
12. The DRC noted that in reference to the penalty of 25% for one instalment, the amount of USD 43,750
is mentioned as an example in the termination agreement. In this context, the Chamber concluded
that this is a clear indication that the total outstanding amount was USD 350,000.
13. Taking into account the Claimant’s allegation that USD 350,000 were outstanding and the
Respondent’s correspondence dated 1 November 2019, where it confirmed said outstanding amount,
the members of the Chamber concluded that the amount of USD 350,000 was referred to as
outstanding remuneration in the termination agreement.
14. At this point, the DRC examined the “proof of payments” submitted by the Respondent and
concluded that such payments remitted up to 17 May 2019 are irrelevant to the dispute at hand.
Therefore, the Respondent’s argument was rejected.
15. In this context, the DRC considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the principal amount due from the termination
agreement, in other words, the reasons brought forward by the Respondent in its defence do not
exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
16. On account of the aforementioned considerations, the Chamber established that the Respondent
failed to remit to the Claimant the total amount of USD 350,000 corresponding to two instalments
of USD 175,000 resulting from the termination agreement.
17. Consequently, the members of the Chamber decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant outstanding
remuneration in the total amount of USD 350,000.
18. Subsequently, the Chamber focussed its attention on the penalty clause contained in art. 3.2 and 3.3
of the termination agreement, in light of the fact that the payments resulting from the termination
agreement remained outstanding. Said penalty clauses read as follows:
“3.2 In the case that the payments mentioned on 3.1 (a and b) are not in the account of the
Employee by the mentioned dates, an immediate and automatic penalty clause will be applied of
25% of the amount (i.e. $43,750.00 on top of the instalments due) to be paid on the day after the
due payment date”.
“3.3 In the case that the payments mentioned in 3.1 and 3.2 are not made, the Employer hereby
commits to pay a 5% cumulative interest per month, counted from the date after the failed
payment until the date of effective payment”.
19. In this context, the DRC acknowledged the arguments of both parties in respect of the penalty clause
and referred to its constant jurisprudence, in accordance with which penalty clauses may be freely
entered into by the parties and may be considered acceptable, in the event that the pertinent written
clause meets certain criteria, such as proportionality and reasonableness. In this respect, the DRC
further highlighted 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 it shall also be taken into
consideration.
20. In the specific case at hand, the members of the DRC took into account the business experience of
the Respondent and the interest of the Claimant by timely receiving the outstanding amounts. The
DRC concluded that, with regard to these criteria, the Respondent did not present any evidence that
could lead to the conclusion that the Respondent had valid reasons for the late payment of the agreed
amount.
21. In the specific case at hand, the members of the Chamber deemed that the penalty fee of 25%, which
the parties contractually agreed upon in the context of terminating the employment relation, is both
proportionate and reasonable in the case at hand.
22. In continuation, the Chamber turned its attention to clause 3.3 and the 5% interest per month, which
in itself possibly constitutes a penalty since it corresponds to a yearly interest rate of 60%.
23. In this regard, the Chamber outlined that such interest clause was explicitly and contractually agreed
upon between the parties apart from the penalty fee and is therefore not per se inapplicable.
24. In line with the Chamber’s jurisprudence, as well as CAS jurisprudence and in accordance with Swiss
Law, the DRC had no other option but to conclude that the interest of 5% per month was
disproportionate, and decided to reduce it to a rate of 18% p.a., a rate that shall be applicable as of
the day after the due dates of the instalments agreed upon in the termination agreement.
25. On account of all of the above, the Chamber decided that the contractual penalty fee is valid and
applicable in the present matter and that the Respondent is liable to pay to the Claimant the amount
of USD 87,500 in accordance with art. 3.2. of the termination agreement. With regard to the
Claimant’s request for interest on the penalty fee, the members of the DRC referred to the
jurisprudence of the DRC in similar cases and concluded that the Claimant’s request for default
interest on the penalty fee must be rejected.
26. Moreover, the Chamber rejected any claim for legal expenses and procedural compensation in
accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding
jurisprudence in this regard.
27. Finally, the members of the Chamber established that any further claim lodged by the Claimant is
rejected.
28. Furthermore, taking into account the consideration under number II./3. above, the 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.
29. In this regard, the 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.
30. Therefore, bearing in mind the above, the DRC 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.
31. Finally, the 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, Santiago Vergini, is partially accepted.
2. The Respondent, Bursaspor Kulubu Dernegi, has to pay to the Claimant, the following amount:
- USD 175,000 as outstanding remuneration plus 18% interest p.a. as from 2 September 2019
until the date of effective payment.
- USD 175,000 as outstanding remuneration plus 18% interest p.a. as from 2 November 2019
until the date of effective payment.
- USD 87,500 as a penalty.
3. Any further claims of the Claimant are rejected.
4. 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.
5. 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).
6. 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:
1. 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).
2. 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.
7.
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).
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