FIFA - Decisión disputa Borrero Caicedo 14092023

REF. FPSD-10615

Decision of the Dispute Resolution Chamber passed on 14 September 2023 regarding an employment-related dispute concerning the player Dylan Felipe Borrero Caicedo BY: Martín AULETTA (Argentina), Deputy Chairperson Mario FLORES CHEMOR (Mexico), member Stella MARIS JUNCOS (Argentina), member

CLAIMANT:

Dylan Felipe Borrero Caicedo, Colombia Represented by Breno Costa Ramos Tannuri

RESPONDENT:

Clube Atlético Mineiro, Brazil pg. 2

REF. FPSD-10615

I. Facts of the case

The Parties

1. The parties to the dispute are the player Dylan Felipe Borrero Caicedo from Colombia

(hereinafter: Claimant or player) and the football club Clube Atlético Mineiro from Brazil (hereinafter: Atlético, club or Respondent). The Employment Contract

2. On 20 May 2019, the player and the club concluded an employment agreement valid as from 5 January 2020 until 31 December 2024. Contextually, the player was registered with the club on 21 January 2020 (hereinafter: the Employment Contract).

3. Under clause 1.4 of the Employment Contract, the club undertook to pay to the player 30% over any transfer fee it received in case of a permanent transfer of the player to a third club (hereinafter: the Transfer Bonus).

The amendment to the Employment Contract

4. On 18 April 2022, the player and the club entered into an agreement to amend the Employment Contract, in that the Transfer Bonus percentage was reduced from 30% to

25%. The player’s transfer to New England Revolution

5. On 20 April 2022, the player, the club, and the Major League Soccer (MLS) signed a transfer agreement by means of which the player’s registration was transferred from the club to the North American club, New England Revolution, affiliated to the MLS, against payment

of a transfer fee of USD 4,000,000. Contextually, the player was registered with New England Revolution on 29 April 2022. The First Agreement

6. On the same date, the player and the club signed a document titled “Private Agreement for Payment commitment and Other Covenants” as freely translated from Portuguese to English

(hereinafter: the First Agreement), according to which the Respondent undertook to pay to the Claimant USD 896,200, conditioned to his satisfactory transfer to New England Revolution. The Second Agreement

7. On 22 July 2022, the player and the club concluded a second document titled “Private Agreement for Payment commitment and Other Covenants” as freely translated from pg. 3

REF. FPSD-10615

Portuguese to English (hereinafter: the Second Agreement), according to which the parties rearranged the Respondent’s payment obligations, and the Respondent undertook to pay the Claimant as follows: a. “the amount in Brazilian Reais equivalent to USD 336,075.00” by 30 July 2022; b. “the amount in Brazilian Reais equivalent to USD 224,050.00“ by 15 August 2022; c. “the amount in Brazilian Reais equivalent to USD 168,037.50” by 25 April 2023; d. “the amount in Brazilian Reais equivalent to USD 168,037.50” by 25 April 2024.

8. For completeness, the most relevant provisions of the Second Agreement are reproduced in continuation.

9. The recitals of the Second Agreement read as follows: “(i) ATLÉTICO definitively transferred the [player]s federative rights to Major League Soccer (MLS), more precisely to the New England Revolution team (“New England”), on

20.04.2022; (ii) the Parties above described signed on 20.04.2022 the [First Agreement], by which

ATLÉTICO undertook to pay the [player], as he holds 25% (twenty five percent) of his own economic rights, the amount in Brazilian Reais equivalent to USD 896,200.00 (eight hundred and ninety-six thousand, two hundred US dollars), to be paid in 3 (three) instalments, the first instalment in the amount of USD 560,125.00 (five hundred and sixty thousand, one hundred and twenty five US dollars), the second instalment in the amount of USD 168,037.50 (one hundred and sixty eight thousand, thirty seven US dollars and fifty cents) and the third instalment in the amount of USD 168,037.50 (one hundred and sixty eight thousand, thirty seven US dollars and fifty cents). (iii) according to item “3” of the [First Agreement], the Parties established that the payment of the amounts to the [player]would be made within 10 (ten) days from the receipt by ATLÉTICO of each instalment of the transfer fee adjusted with MLS; (iv) ATLÉTICO received the first instalment due to the final transfer, but due to difficulties arising from cash flow, did not pay the [player], within the agreed period, of his (ATHLETE) first parcel; (v) ATLÉTICO adjusted with the MLS the advance payment of the second and third instalments due to the definitive transfer; (vi) the Parties intend to adjust a new payment method for the first instalment to the [player], as well as ratify the payment method for the second and third instalments provided for in point “(ii)” above;”

10. Clauses 1 and 2 of the Second Agreement read as follows: pg. 4

REF. FPSD-10615 “1. Through this instrument, ATLÉTICO undertakes to pay the [player]the first instalment, which is in arrears, in the amount in Brazilian Reais equivalent to USD 560,125.00 (five hundred and sixty thousand, one hundred and twenty five US dollars),

according to the following schedule:

I. 60% (sixty percent) of the overdue debt, that is, the amount in Brazilian Reais equivalent to USD 336,075.00 (three hundred and thirty six thousand, seventy five US dollars), no later than on 30.07.2022; and

II. 40% (forty percent) of the overdue debt, that is, the amount in Brazilian Reais equivalent to USD 224,050.00 (two hundred and twenty four thousand, fifty US dollars) no later than 15.08.2022.

2. Additionally, the Parties agree that, even though ATLÉTICO is anticipating the receipt of the second and third instalments of the final transfer fee from MLS, the method of payment of the second and third instalments to the [player], in the amount in Brazilian Reais equivalent to USD 168,037.50 (one hundred and sixty-eight thousand, thirty seven US dollars and fifty cents), each, will be according to the following

schedule:

I. The second instalment in the amount in Brazilian Reais equivalent to USD 168,037.50 (one hundred and sixty-eight thousand, thirty seven US dollars and fifty cents) must be paid by ATLÉTICO to the [player]no later than 25.04.2023; and

II. The third instalment in the amount in Brazilian Reais equivalent to USD 168,037.50

(one hundred and sixty-eight thousand, thirty seven US dollars and fifty cents) must be paid by ATLÉTICO to the [player]no later than 25.04.2024.”

11. Clauses 5 and 6 of the Second Agreement read as follows: “5. In case of delay in payment, the [player]must notify ATLÉTICO in writing so that, within a maximum period 48 (forty-eight) hours, ATLÉTICO can purge the arrears. 5.1. If ATLÉTICO remains in default after the stipulated period, the total amount will

be due in advance and immediately and ATLÉTICO must comply with the total payment of the amount due, plus a fine of 10% (ten percent), in addition to interest of 01% (one percent) per month, until the effective payment date.

6. If ATLÉTICO remains in default after the stipulated period, the total amount will be due in advance and immediately and ATLÉTICO must comply with the total payment of the amount due, plus a fine of 10% (ten percent), in addition to interest of 01% (one percent) per month, until the effective payment date.” pg. 5

REF. FPSD-10615

12. Clause 12 of the Second Agreement reads as follows: “12. The Parties elect the Dispute Resolution Chamber of the FIFA Football Tribunal, for the resolution of any disputes, doubts and controversies arising from this instrument to the detriment of any other, despite of how privileged it may be or may come to be in the future.” The assignment of credits by the player

13. On 22 July 2022, the player sent a letter to the club (hereinafter: the Credit Assignment Letter) and stated that he assigned some credits to a company called “BRIO PRO INTERMEDIAÇÃO

ESPORTIVA LTDA” (hereinafter: Brio or Company).

14. The Credit Assignment Letter reads as follows (freely translated from Spanish to English): “1. With reference to the provisions of the [Second Agreement] and the Letter sent to you on 25 April 2022, I hereby inform and request the following.

2. It is common knowledge that, due to the cash flow difficulties of [Atlético], a new form of payment of the amount of USD 560,125.00 (five hundred and sixty thousand one hundred and twenty-five US dollars), which is already due, and which refers to the first instalment due, was established in the [Second Agreement].

3. The new schedule foresees the payment of 60% (sixty percent) of the overdue debt,

that is, the amount in reais equivalent to USD 336,075.00 (three hundred and thirtysix thousand seventy-five US dollars), no later than 30 July 2022; and 40% (forty percent) of the overdue debt, that is, the amount in reais equivalent to USD 224,050.00 (two hundred and twenty-four thousand and fifty US dollars), no later than 15 August 2022.

4. In addition, as is known, it was established in the [Second Agreement] that

[Atlético]adjusted the anticipation of receipt of the second and third instalments from MLS, and that the form of payment of the second and third instalments will follow the following schedule: the second instalment, the amount in reais equivalent to USD 168.037.50 (one hundred and sixty-eight thousand and thirty-seven US dollars and fifty cents), shall be paid by [Atlético]no later than 25 April 2023; and the third instalment, the amount in reais equivalent to USD 168,037.50 (one hundred and sixtyeight thousand and thirty-seven US dollars and fifty cents), shall be paid by [Atlético]no later than 25 April 2024.

5. As informed in the Letter, I assigned to the company BRIO PRO INTERMEDIAÇÃO ESPORTIVA LTDA., registered in the CNPJ n. 21.677.383/0001-07 (the "BRIO"), part of the credit that was guaranteed to me, more precisely the amount in reais equivalent pg. 6

REF. FPSD-10615 to USD 596.200,00 (five hundred ninety-six thousand two hundred US dollars), and I requested the payment of this amount directly to BRIO, in its bank account.

6. Thus, in view of the signing of the [Second Agreement], and my commitment to BRIO, I hereby reiterate the request for payment of the amount detailed above, directly

to BRIO, so that, of the 60% (sixty percent) of the overdue debt, referring to the first installment, the amount in reais equivalent to USD 224,050.00 (two hundred and twenty-four thousand and fifty US dollars) shall be paid to BRIO; and of the 40% (forty per cent) of the overdue debt, referring to the first instalment, the amount in reais equivalent to USD 149,366.66 (one hundred and forty-nine thousand and three hundred and sixty-six US dollars and sixty-six cents) shall be paid to BRIO.

7. As for the second and third instalments, the amount in reais equivalent to USD 111,391.67 (one hundred and eleven thousand three hundred and ninety-one US dollars and sixty-seven cents) of each instalment shall be paid directly to BRIO.

8. Please note that all payments due to BRIO must be made by transferring funds to the following BRIO bank account: (…)

9. As for the payments due to me, these are to be made by transferring funds to the following bank account of which I am the account holder: (…)

Sincerely,

DYLAN FELIPE BORRERO CAICEDO

15. The Credit Assignment Letter possesses a “acknowledged and agreed” area for the club to sign, which it did via electronic signature.

The payments made by the club

16. On 29 July 2022, the Respondent paid: • BRL 1,168,398.35 to Brio; • BRL 584,199.17 to the Claimant.

17. On 16 August 2022, the Respondent paid: • BRL 380,324.91 to the Claimant; • BRL 1760,649.72 to Brio.

18. These payments are not disputed by the parties.

The agreement of recession

19. By document dated 21 April 2023, the player and the Company signed an Agreement of Recession (hereinafter: the Agreement of Recession), by means of which inter alia the Credit

pg. 7

REF. FPSD-10615

Assignment Letter was rescinded, and it was established that only the player was entitled to the amounts established under the Second Agreement. The Respondent contests the date of execution of the Agreement of Recession. The default notice

20. On 28 April 2023, the Claimant put the Respondent in default and requested payment of USD 168,037.50 due on 25 April 2023 under the Second Agreement setting a 48 hours’ time limit in order to remedy the default. pg. 8

REF. FPSD-10615

II. Proceedings before FIFA

21. On 19 June 2023, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. Claim of the Claimant

22. As the jurisdiction of FIFA, the player argued as follows: • FIFA is competent to hear disputes between players and clubs arising from private agreements, in accordance with art. 22 par. 1 lit. (b) of the FIFA Regulations on the Status and Transfer of Players (RSTP). • the Second Agreement contains a valid arbitration clause, which confers jurisdiction on the FIFA Dispute Resolution Chamber (DRC) to hear the case.

23. As to the substance of his claim, the player argued as follows: • the club breached the principle of pacta sunt servanda by failing to pay the first instalment as agreed in the Second Agreement. • the failure of the club to pay said first instalment triggered the acceleration clause, which made all the remaining instalments immediately due, as well as the penalty and the default interest, as agreed by the parties in the Second Agreement. • the acceleration clause, the penalty and the default interest are valid and binding, in accordance with the FIFA regulations, general principles of law, and the jurisprudence of FIFA and the Court of Arbitration for Sport (CAS). • the club should pay him the outstanding amount, plus the penalty and the default

interest, as well as costs, in accordance with the Second Agreement and the principle of pacta sunt servanda.

24. The Claimant requested the following relief, quoted verbatim: “FIRST – To uphold the claim filed by the Player; SECOND – To order the Club to pay the Player USD 168,037.50, plus default interest at the rate of 12% p.a. as from 26 April 2023 until the date of effective payment; THIRD – To order the Club to pay the Player USD 168,037.50, plus default interest at a rate of 12% p.a. as from 4 May 2023 until the date of effective payment; pg. 9

REF. FPSD-10615

FOURTH – To order the Club to pay the Player an amount of USD 33.607,50 (thirtythree thousand, six hundred and seven US dollars and fifty cents) as penalty fee; FIFTH – To open the proceedings regarding the present dispute and notify the Club immediately (cf. Art. 21, par. 1 of the FIFA Procedural Rules).” b. Position of the Respondent

25. In its reply, the club started by challenging the jurisdiction of FIFA on the grounds that the claim does not arise from the parties’ previous employment relationship, but from a separate contract regarding the transfer of the player to another club (i.e., the Second Agreement). The club argues that this separate contract falls outside of FIFA’s jurisdiction and competence to adjudicate on the dispute.

26. As to the substance, the Respondent disputes the enforceability of the claimed debt on the grounds that the Claimant failed to properly put the Respondent in default according to the relevant FIFA regulations, namely art. 12bis of the RSTP, in that the default notice only granted the club 48 hours to pay.

27. The club also disputes the standing to sue of the Claimant on the grounds that he assigned a portion of his credits to a third party, namely the Company, and therefore cannot request

their payment on his own behalf. In the respect, the club argued that it made the following payments to the Company and to the player: (i) To Brio: • BRL 1.168.398,35 on 29 July 2022 (Exhibit nr. 03), corresponding to the “amount in reais equivalent to USD 224.050,00 (two hundred and twenty-four thousand fifty US dollars)”, cf. the paragraph 06 of the “Assignment Letter”; and • BRL 760.649,72 on 16 August 2022 (Exhibit nr. 04), corresponding to the “amount in reais equivalent to USD 149.366,66 (one hundred and forty-nine thousand three hundred and sixty-six US dollars and sixty-six cents)”, cf. the paragraph 06 of the “Assignment Letter”. (ii) To the Claimant: • BRL 584.199,17 on 29 July 2022 (Exhibit nr. 05), corresponding to the remaining USD 112.025,00 of the installment foreseen in Clause 1., lit. “I.”, of the Contract (USD 336.075,00 minus the USD 224.050,00 assigned to Brio); and • BRL 380.324,91 on 16 August 2022 (Exhibit nr. 06), corresponding to the remaining USD 74.683,34 of the installment foreseen in Clause 1, lit. “II.”, of the Contract (USD 224.050,00 minus the USD 149.366,66 assigned to Brio).” pg. 10

REF. FPSD-10615

28. The club further clarified the following, quoted verbatim: “Accordingly, the Respondent respectfully requests the DRC to partially dismiss the present claim on its merits, pursuant to the well-established jurisprudence of both the FIFA and the CAS12, insofar as the Player lacks standing to sue regarding a portion of the credits whose payment he requested in casu.

Considering, therefore, that they arise from the installments foreseen in Clause 2. of the Contract, of which he assigned USD 111.391,67 to Brio, the Respondent shall be ordered to pay, if any, an amount not greater than USD 56.645,83 or, at most, USD 113.291,66, what is hereby assumed only for the sake of argument in the unlikely event that the DRC rejects all other objections raised herein. For ease of understanding, please refer to the calculations provided below:” Ref. Maturity Date Original Amount Assignment to Brio Player’s Entitlement Clause 2., “I.” 25.04.2023 USD 168.037,50 USD 111.391,67 USD 56.645,83

Clause 2., “II.” 25.04.2024 USD 168.037,50 USD 111.391,67 USD 56.645,83

TOTAL USD 113.291,66

29. Additionally, the club disputes the applicability and proportionality of the penalty clause and interest rate stipulated in the Second Agreement on the grounds that they are excessive and abusive and contravene the principles of contractual law.

30. The Respondent filed the following request for relief, quoted verbatim: “1. That the DRC declares itself incompetent to hear the present dispute, thereby deeming the State ment of Claim lodged by the Player inadmissible.

2. Alternatively, in the event that the DRC considers itself competent, that the claim filed by the Player is dismissed on its merits on the following grounds: - The lack of enforceability of the claimed debt due to the Claimant’s failure to properly place the Respondent in default according to the relevant FIFA Regulations, namely art. 12bis, par. 3, of the RSTP; - On a subsidiary basis, the Player’s lack of standing to sue regarding a portion of the credits whose payment he requested in casu, in which case the Respondent shall be

ordered to pay an amount not greater than USD 56.645,83 or, at most, USD 113.291,66, depending on the Panel’s decision regarding the acceleration of the installment specified in Clause 2., lit. “II.”, of the Contract; and pg. 11 REF. FPSD-10615 - In the event that Atlético is ordered to pay any amounts to the Player, that the penalty clause stipulated in Clause 6 of the Contract is entirely disregarded or, on a subsidiary basis, that its scope is significantly reduced by the Panel as requested hereby.

3. That the Player is ordered to bear all costs related to the present proceedings.”

c. Rejoinder of the Claimant

31. In his rejoinder, the Claimant argued as follows:

Jurisdiction

32. The player insists that the dispute is employment-related and arises from the Employment Contract and its amendments. He cites FIFA regulations, CAS jurisprudence, and Swiss law to confirm the DRC’s competence and jurisdiction.

33. The player argues that the Transfer Bonus that he is entitled to receive from the club per the multiple contracts signed is a part of his remuneration under his employment relationship and is not in violation of FIFA’s rules on third-party ownership of players’ economic rights.

34. The player contends that the First Agreement and the Second Agreement are both directly linked to his Employment Contract and its amendment, which ratified his monetary entitlement. He asserts that there would not have been any of these agreements if there was not the signature of the Employment Contract and corresponding amendment.

35. The player relies on CAS jurisprudence to support his position that the notion of “employment-related disputes” includes a much wider range of disputes than just disputes arising over employment agreements. He states that the scope of art. 22 of the RSTP includes also disputes that may arise after the termination of the employment relationship and are “employment related”, such as in connection with the First Agreement and the Second Agreement in the matter at hand.

Assignment of credits

36. The player contends that the letter dated 22 July 2022 (i.e., the Credit Assignment Letter), which the club relies on as evidence of the assignment, is questionable and does not meet the criteria of a valid and binding assignment under Swiss law, which is applicable in this case.

37. The player asserts that he communicated to the club that the payment of the first instalment under the Second Agreement had to be done to him and not to Brio, by sending a notice of default on 28 April 2023, giving the club 48 hours to clear the arrears. He states pg. 12

REF. FPSD-10615 that the club did not dispute or reply to the default notice, which implied its acceptance of the new instructions.

38. The player submits that he also entered into the Agreement of Recession with Brio on 21

April 2023, which formally confirmed that Brio was not entitled to receive any further portion of the claim and that the player had the sole right to receive the full amount due from the club. He cites a Swiss Federal Tribunal decision that supports his position that such an agreement is enough to protect the interests of the debtor and avoid any risk of double payment.

39. The player concludes that he has standing to sue for the entire claim and that the club’s argument based on the Credit Assignment Letter is legally groundless and made in bad faith.

Contractual penalty

40. The player claims that the penalty clause was validly agreed upon by the parties under the Second Agreement and was proportionate and reasonable. He invokes the principles of freedom of contract, pacta sunt servanda, and contractual loyalty. He also distinguishes between penalty, default interest, and acceleration clause as different contractual consequences for breach.

41. The player argues that the penalty clause was intended to encourage the performance of the main obligation and to secure his interests as a creditor. He cites Swiss law and CAS jurisprudence to support his position that a penalty of 10% of the outstanding amount is

not excessive or punitive – as opposed to the argumentation of the club in this regard.

42. The player contends that the club was fully aware of the penalty clause when it drafted and signed the Second Agreement. He states that the club did not dispute or question the penalty clause until after it failed to pay the instalments by the due dates.

43. The player asserts that he acted in good faith by sending a notice of default to the club, giving it 48 hours to clear the arrears, otherwise he would initiate legal proceedings. He states that the club did not pay or reply to the notice of default, which triggered the penalty, acceleration clause, and default interest.

44. The player concludes that the club is liable to pay him the outstanding amount plus a penalty of 10%, in accordance with the Second Agreement and Swiss law.

45. The Claimant filed the following request for relief, quoted verbatim: “FIRST – To uphold the claim filed by the Player; pg. 13

REF. FPSD-10615

SECOND – To order the Club to pay the Player USD 168,037.50, plus default interest at the rate of 12% p.a. as from 26 April 2023 until the date of effective payment; THIRD – To order the Club to pay the Player USD 168,037.50, plus default interest at a rate of 12% p.a. as from 2 May 2023 until the date of effective payment; FOURTH – To order the Club to pay the Player an amount of USD 33,607.50 (thirtythree thousand, six hundred and seven US dollars and fifty cents) as penalty fee; FIFTH – To confirm that the ongoing proceedings is free of any costs.” d. Final comments of the Respondent

46. In its final comments, the Respondent raised the following arguments:

Jurisdiction

47. The club reiterated its position that the DRC is not competent to hear the case because the dispute is not employment-related. The club claims that the dispute concerns a separate

contract that has no connection with the player's services as a professional football player, and that that the mere fact that the player's entitlement to economic rights (i.e., the Transfer Bonus) was first established in the Employment Contract is not sufficient for the case to fall within the definition of an "employment-related dispute" according to the RSTP.

48. On this note, the club refers to FIFA jurisprudence on image rights agreements, which requires a direct link between a separate contractual arrangement and the services of the player as a player for a claim to be qualified as an "employment-related dispute" and fall within the competence of the DRC. The club contends that this rationale applies to the present case, as the player's claim concerns a credit stipulated in an autonomous contract

(i.e., the Second Agreement) and whose payment is not triggered by his services as a player, but rather from his transfer to another league. Standing to sue of the player

49. The club reiterates that the player lacks standing to sue for the amounts he assigned to Brio, as he did not communicate the revocation of the assignment to the Club nor respected the formal requirements under the Swiss Code of Obligations (SCO) to do so.

As to the validity of the Agreement of Recession

50. The club claims that the player never informed it of the Agreement of Recession and questions its authenticity and validity since this agreement may have been simulated or violated formal requirements, and that it is not enforceable against the club, as it was not notified or consented to it. pg. 14

REF. FPSD-10615

51. The club argues that the Agreement of Recession may be invalid for several reasons. First, the club claims that this agreement may have been simulated or fabricated by the player and Brio after the player lodged his claim. The club questions the authenticity of such agreement and argues that it was not attached to the player’s initial statement of claim, but only enclosed to his rejoinder after his standing was firstly challenged by the club. The

club also notes that the Agreement of Recession was drafted in English, while the Credit Assignment Letter was executed in both Spanish and Portuguese. The club requests that the DRC either reduces the applicable standard of proof and deems the Agreement of Recession null and void, or shifts the burden of proof to the player’s detriment and orders him to demonstrate beyond any reasonable doubt that it was indeed executed on the date claimed.

52. Second, even if the Agreement of Recession is not considered simulated, the club argues that it violated formal requirements established in Swiss law. The club claims that since the Agreement of Recession is an accessory contract to the Credit Assignment Letter, it should have respected its formal requirements, including obtaining the club’s express and written consent. The club also argues that such an obligation arises from a joint interpretation of art. 13.1 and 165.1 of the SCO, which require a contract to be concluded in writing if it imposes obligations on a third party.

53. Third, the club argues that the Agreement of Recession is not enforceable against it. The club insists that it was not notified or consented to this agreement, and that the player never made it aware of its existence prior to enclosing it to his rejoinder. The club argues that this behaviour violates the principle of good faith and disregards the “legitimate expectation” that the player had created when he addressed the Credit Assignment Letter to the club.

54. Therefore, based on these arguments, the club requests that the DRC deems the Agreement of Recession not enforceable against it and disregards it when ruling on the case.

Risk of duplicate payments

55. The club argues that there would be a risk of duplicate payments if it were to comply with the player’s instructions as outlined in the default notice as it had a legitimate doubt as to the benefit of whom, the player or Brio, the payment was supposed to be performed. The club grounds its position pursuant to art. 168, paragraphs 1 and 2, of the SCO (by analogy).

Implied acceptance

56. The club argues that it did not implicitly accept the terms and conditions outlined in the default notice, as claimed by the player. The club contends that its lack of response cannot be interpreted as an implied acceptance of its terms. The club also argues that art. 6 of the pg. 15

REF. FPSD-10615

SCO, which provides for an implied acceptance of an offer if it is not rejected within a reasonable time, does not apply to this case, as it refers to the conclusion of a contract and not to the enforceability of a private agreement between two parties towards a third party. Lack of enforceability of the claimed debt and impossibility to enforce the penalty clause and to impose sanctions

57. The club argues that it had a prima facie contractual basis not to perform any payments to the player, as it had a legitimate doubt as to the benefit of whom, the player or Brio, the payment was supposed to be performed. Likewise, as the player’s default notice failed to meet the formal requi