FIFA - Decisión disputa de Matos 08062023

REF. FPSD-9560

Decision of the Dispute Resolution Chamber passed on 8 June 2023 regarding an employment-related dispute concerning the player Denis Cesar de Matos

COMPOSITION:

Clifford J. HENDEL (USA & France), Deputy Chairperson Khalid AWAD ALTHEBITY (Saudi Arabia), member Alexandra GOMEZ BRUINEWOUD (Uruguay & The Netherlands), member

CLAIMANT:

Denis Cesar de Matos, Brazil Represented by Tannuri Ribeiro Advogados

RESPONDENT:

Aris FC, Greece pg. 2

REF. FPSD-9560

I. Facts of the case

1. On 12 August 2022, the Brazilian player, Denis Cesar de Matos (hereinafter: the Player or the Claimant) and the Greek club, Aris FC (hereinafter: the Club or the Respondent) concluded a termination agreement (hereinafter: the termination agreement), for the employment contract previously signed between the same parties on 2 July 2021.

2. Under the termination agreement, the Respondent undertook to pay to the Claimant a total net amount of EUR 140,888.83 payable as follows: • EUR 20,000 net, no later than 20 August 2022; • EUR 20,000 net, no later than 1 October 2022; • EUR 20,882.82 net, no later than 30 November 2022; • EUR 40,000 net, no later than 1 April 2023; • EUR 40,000 net, no later than 1 July 2023.

3. The termination agreement stipulated in the penultimate paragraph of the section A the following: “The parties herein agree that in the event of any failure of the payment of two of the aforementioned instalments for more than 30 days then, all the remaining instalments shall become due immediately and a penalty of 10% and a default interest of 5% shall accrue on

the total outstanding amount”.

4. The termination agreement further stipulated in the penultimate paragraph of the section C the following: “This contract is drafted bilingual in Hellenic and English language. In case of any conflict between the two versions, the English version prevails.”

II. Proceedings before FIFA

5. On 9 March 2023, 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

6. In his claim, the Claimant stated that the Respondent failed to pay the two first instalments on the due dates (20 August 2022 and 1 October 2022) hence, on 1 November 2022, all the remaining instalments became due in accordance with the provisions of the acceleration clause. Moreover, he claimed that a penalty of 10%, which according to the Claimant is proportional, and an interest of 5% p.a. shall also accrue on the total outstanding amounts. pg. 3

REF. FPSD-9560

7. The Claimant requested the following relief: “FIRST – To uphold the claim filed by the Player; SECOND – To order the Club to pay the Player EUR 20,000 (twenty thousand Euros) net plus default interest at a rate of 5% as from 21 August 2022 until the date of effective payment; THIRD – To order the Club to pay the Player EUR 20,000 (twenty thousand Euros) net plus default interest at a rate of 5% as from 2 October 2022 until the date of effective payment; FOURTH – To order the Club to pay the Player EUR 100,882.82 (one hundred thousand eight hundred and eighty-two Euros and eighty-two cents) net plus default interest at a rate of 5% as from 1 November 2022 until the date of effective payment; FIFTH – To order the Club to pay the Player an amount of EUR 14,088.88 (fourteen thousand

and eighty-eight Euros and eighty-eight cents) net as penalty; SIXTH – To open the proceedings regarding the present dispute and notify the Club immediately (cf. Art. 21, par. 1 of the FIFA Procedural Rules); and SEVENTH – To confirm that the proceedings are free of any costs”. b. Position of the Respondent

8. In its reply, the Respondent requested FIFA to dismiss the claim. The Respondent held that it paid the first instalment on 27 September 2022 and the second and third instalment on 10 March 2023.The Respondent provided with untranslated evidence on this matter.

9. As it paid the first instalment on 27 September 2022, the Respondent argued that there were not two instalments due on 1 November 2022. Moreover, according to the Respondent, the termination agreement stipulated that in addition to the condition of having 2 instalments delayed for more than 30 days, a written notice should also be sent to the Respondent claiming said amounts, which did not happen. Therefore, the Respondent argued that the three instalments were paid prior to receive any notice, thus the conditions of the acceleration clause and the contractual penalty were not met and the remaining two instalments payable in April and July 2023 have not become due.

10. Finally, the Respondent argued that the penalty claimed indeed corresponded to a hidden interest for late payment. As such and provided that it was already burdened with an interest of 5% p.a., the Respondent considered that any additional penalty was unacceptable, abusive and unenforceable. Consequently, it concluded that the corresponding provision should be rendered null and void.

c. Additional comments of the Claimant

11. The Claimant acknowledged payment of the 3 first instalments as follows: (i) the first instalment on 27 August 2022; and (ii) the second and the third instalments on 10 March 2023. pg. 4

REF. FPSD-9560

12. The Claimant stated that: “Considering that two of the instalments of the settlement amount were delayed for more than 30 days all remaining instalments became due immediately based upon the so-called “acceleration clause” agreed between the parties and contractually agreed. Moreover, the penalty, as well as the default interest stipulated in the Release Contract also became due.

In light of the above, we hereby inform you that the Player is entitled to receive the contractually stipulated penalty amounting to EUR 14,088.88 and the applicable default interest on account of the late payment of the said second and third instalments”. pg. 5

REF. FPSD-9560

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

13. 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 9 March 2023 and submitted for decision on 8 June 2023. Taking into account the wording of art. 34 of the March 2023 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.

14. 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 par. 1 lit. b) of the Regulations on the Status and Transfer of Players (May 2023 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 player from Brazil and a club from Greece.

15. 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 (May 2023 edition), and considering that the present claim was lodged on 9 March 2023, the October 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. b. Burden of proof

16. 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

17. 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 pg. 6

REF. FPSD-9560 considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

1. Main legal discussion and considerations

18. 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 of a player against a club for overdue payables, in which the main dispute of the parties is to establish whether the acceleration clause and the contractual penalty were triggered in accordance with the termination agreement.

19. In this context, the Chamber recalled wording of section A of the termination agreement which stipulated that: “the parties herein agree that in the event of any failure of the

payment of two of the aforementioned instalments for more than 30 days then, all the remaining instalments shall become due immediately and a penalty of 10% and a default interest of 5% shall accrue on the total” (emphasis added). Accordingly, the Chamber noted that only one condition was to be meet in order to trigger the acceleration and penalty clause, i.e., having two instalments outstanding for more than 30 days. Furthermore, it pointed out that the acceleration clause was not conditioned to the issuance of a default notice, such as suggested by the Respondent.

20. In continuation, the DRC highlighted that it remained undisputed between the parties that the Club effectively paid the three first instalments of the termination agreement to the Player. Nevertheless, whilst the date of payment of the second and third instalments was not challenged (10 March 2023), the Chamber noted that the date of payment of the first instalment is different: while the Claimant indicated that it was paid on 27 August 2022, the Respondent indicated that it was paid 27 September 2022. In this respect, the Chamber noted that the documentation provided by the Respondent was not translated to any of the official procedural languages. Therefore, by referring to art. 13, par. 3 and 5 of the Procedural Rules, the Chamber decided to take into consideration the argumentation of the Claimant that the payment occurred on 27 August 2022. It added, however, that such conclusion is not per se material to the assessment of the matter.

21. In the present case, the Chamber noted that: - The second instalment was due on 1 October 2022 and the payment was only made on 10 March 2023, therefore, more than 4 months passed between the due date and the effective payment. - The third instalment was due on 30 November 2022 and the payment was only made on 10 March 2023, therefore more than 3 months passed between the due date and the effective payment.

pg. 7

REF. FPSD-9560

22. Thus, and regardless of any discussion pertaining to the payment of the first instalment, the reasons invoked by the Club in order to establish that the conditions of the acceleration clause were not met cannot be followed. On the contrary: the Chamber decided that the acceleration and penalty clauses included in the termination agreement were in fact triggered by the default of the Club and shall be enforced in line with the general legal principle of pacta sunt servanda. Accordingly, the Player shall be entitled to the total amount sought (i.e., the two last instalments of the termination agreement), totalling USD 80,000 net.

23. In addition, taking into consideration the Player’s request and the constant practice of the Chamber in this regard, the latter decided to award interest at the rate of 5% p.a. as follows: - On the amount of EUR 80,000 as from 1 January 2023 until the date of effective payment. - On the amount of EUR 20,000 net as from 21 August 2022 until 27 August 2022. - On the amount of EUR 20,000 net as from 2 October 2022 until 9 March 2022.

24. Lastly, the Chamber pointed out that the contractual penalty of EUR 12,888.83 shall also be awarded insofar as it is contractually based, reasonable and proportionate in line with the jurisprudence of the Football Tribunal. Notwithstanding, by recalling the principle of ne bis in idem, the DRC established that no interest should be applicable over the penalty. ii. Compliance with monetary decisions

25. 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.

26. 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.

27. 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. pg. 8

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28. 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.

29. 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

30. 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.

31. 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.

32. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties.

pg. 9

REF. FPSD-9560

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Denis Cesar de Matos, is partially accepted.

2. The Respondent, Aris FC, must pay to the Claimant the following amounts: - EUR 80,000 net as outstanding remuneration plus 5% interest p.a. as from 1 January 2023 until the date of effective payment; - 5% interest p.a. over the amount EUR 20,000 net as from 21 August 2022 until 27

August 2022; - 5% interest p.a. over the amount EUR 20,000 net as from 2 October 2022 until 9 March 2022; - EUR 12,888.83 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

pg. 10

REF. FPSD-9560

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 | psdfifa@fifa.org | T: +41 (0)43 222 7777 pg. 11