FIFA - Decisión disputa Sardon 22112023

REF. FPSD-11520

Decision of the Dispute Resolution Chamber passed on 22 November 2023 regarding an employment-related dispute concerning the player José Augusto Sardon

COMPOSITION:

Frans DE WEGER (The Netherlands), Chairperson Johan VAN GAALEN (South Africa), Member Calum BEATTIE (Scotland), Member

CLAIMANT:

José Augusto Sardon, Argentina Represented by Ariel N. Reck

RESPONDENT:

Sitra SC, Bahrain pg. 2

REF. FPSD-11520

I. Facts of the case

1. On 7 July 2022, the Argentinian player, José Augusto Sardon (hereinafter: the Claimant or the player) and the Bahraini club, Sitra SC (hereinafter: the Respondent or the club) concluded an employment contract (hereinafter: the contract) valid as from 1 August 2022 until 30

April 2023, or until the end of the last official match of the club in the relevant season.

2. In the first part of the contract, it was mentioned that the player holds the Bahraini nationality.

3. Clause 4 of the contract reads as follows (quoted verbatim): “[the club] is obliged to the following: - [the club] is obliged to pay a monthly salary to the player in the amount of USD3000/- only from 01/08/2022 to the last match of the club football first team in the sports season 2022-2023. - Provide an adequate accommodation and transportation to the player until the last match of the club football first team in the sports season 2022/2023. - [the club] is obliged to provide a Player ticket. - pay a commission to the player’s agent at 10% of the value of the contract on behalf of the player”.

4. Clause 9 of the contract reads as follows: “1. - The contract ends with the expiry of its term, or by agreement of the parties

according to a clearing between them in financial, administrative and technical matters. 2Either party has the right to terminate the contract if there is a legitimate reason or a just sporting reason, subject to the regulations of the national and International Football Associations. 3The foregoing shall not prejudice all other rights of the player under this contract. 4In case, any wishes to cancel the settled contract during its validity, the party wishing to end the contract is obliged to pay an amount of 9000/ - USD (Nine thousand only) as a penalty condition to the other party. - if any clause of this contract is violate the FIFA and BFA regulations, this clause will be declared null and the contract shall be valid.” pg. 3

REF. FPSD-11520

5. On 28 January 2023, the Respondent sent to the player a termination notice (hereinafter; the termination notice) which included the following information: “[…] Kindly treat this letter for as your Notice of Termination of employment with Sitra Cultural and Sports Club from its date and according to what was specified in Condition 4 of Clause 9 of the contract concluded on July 7, 2022, which obliges the party responsible for the termination to pay an amount of $9,000 as a penalty clause to the other party.”

6. It is to be noted that the copy of the termination notice provided by the club included the acknowledgement and signature of the player which was quoted as follows: “When I sign this letter of unilateral termination by the club, I have not yet received the amount described in the letter and I still have to receive the salary for the month of January”.

7. On 28 January 2023, the player signed an employment contract with the Bahraini club, Etehad Al Reef, valid as from the date of signature until 31 May 2023, with a monthly salary of USD 500.

II. Proceedings before FIFA

8. On 28 August 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

9. In his claim, the player argued that the club failed to comply with its financial obligations under the contract by not paying the following amounts: - December 2022 and January 2023 salaries (USD 6,000). - The housing allowance from August 2022 until January 2023, totalling BHD 3,015,8

(BHD 112 + BHD 653 + BHD 450 + BHD 450 + BHD 450 + BHD 450 + BHD 450) equivalent to USD 7,990. The player provided evidence on this point and indicated that the mentioned amounts were paid on 13 February 2023. - The reimbursement of the flight ticket (USD 1,567). The player provided evidence on this point.

10. In addition, the Claimant stressed that the contract was terminated without just cause and requested the payment of USD 9,000 as compensation in accordance with clause 9 of the contract. pg. 4

REF. FPSD-11520

11. The Claimant further requested interest of 5% p.a. as from 28 January 2023 over the outstanding amounts and compensation and to apply sporting sanctions on the club.

b. Information requested to the Bahrain Football Association (BFA)

12. On 29 August 2023, the FIFA general secretariat requested the BFA to inform FIFA under which nationality the player was registered with the club.

13. On 3 September 2023, BFA confirmed that the player was registered with the Argentinian nationality, and that it appears that the club had mistakenly listed the player with the Bahraini nationality in the contract.

c. Position of the Respondent

14. In its reply, the Respondent stated that it paid almost all the amounts requested by the player, and that the remaining amount due to the player was USD 3,000.

15. In this context, the club provided with the following table showing the payments it

performed during the contract: Salaries Bank check Amount housing fees Date (BHD) August Salary 1,134 There are no 05-09-2022 Transfer housing fees for the player’s residence in the club’s private residence. September Salary 1,134 There are no 06-10-2022 Transfer housing fees for the player’s residence in the club’s private residence. October Salary 1,320 10-11-2022 Transfer November Salary 1,384 09-12-2022 Transfer December Salary 1,384 03-01-2023 Transfer

16. In this regard, the club submitted as supporting evidence 5 cheques issued by the company “Tumooh Sport Management”, with the amounts mentioned above. pg. 5

REF. FPSD-11520

17. In addition, the club mentioned that as it terminated the contract, it was obliged to pay the value of the release clause. Therefore, the club indicated that it paid the following amounts and provided evidence on this regard: Salaries Transaction housing fees Date Amount (BHD) January and 2,768 17-03-2023

February Salary Transfer March Salary 1,134 20-04-2023 Transfer

18. As to the flight tickets, the club stated that it paid the flight for the player’s arrival.

19. In view of the foregoing, the club argued that the player was only entitled to one additional salary in accordance with the penalty clause inserted in the contract, amounting to USD

3,000. d. Rejoinder of the Claimant

20. In his rejoinder, the Claimant indicated that he does not recognise the cheques provided from August 2022 to December 2023, since the documentation provided the player indicated that (i) the cheques are not from the account of the club, but from a company named Tumooh Sport Management; (ii) the player did not receive those cheques; (iii) the

cheques contained the name of the player misspelled (i.e., “Sadron” instead of “Sardon”); and (iv) the cheques contained a signature which does not correspond to the player’s signature. In view of the foregoing, the player concluded that this evidence cannot be considered as proof of payment.

21. Regarding the bank payments from January to March, the Claimant acknowledged receipt of said payments. In view of the foregoing, he amended his request for relief as follows: - USD 3,000 as salary plus 5 % interest as from 28 January 2023. - USD 3,000 as balance of the compensation plus 5 % interest as from 28 January 2023. - USD 7,990 as housing for the 6 months from August 2022 until January 2023 for a total amount of BHD 3,015.8 plus 5 % interest as from 28 January 2023. - USD 1,567 for the return flight ticket plus 5 % interest as from 28 January 2023. - To apply sporting sanctions on the club.

e. Final comments of the Respondent pg. 6

REF. FPSD-11520

22. In its final comments, the Respondent stated the following: “Based on what the other party relied on, about the Tumooh Sports Management Company, it is a strategic national partner with the club in paying the players' salaries and dues, recruiting players, and paying their monthly salaries as an official sponsor of the club's football teams, as if you notice the player signing the receipt of all bank checks according to the attached pictures, and if he does not receive He did not return the check to the company so that it could be changed if he found any error in it. We also note why the player waited this entire period or return it to us in order to change it. We would also like to note the commitment to all payments of dues, as shown in the payments that we disbursed to the player by adding the salary with the housing

expenses. Accordingly, we confirm to you our commitment to disbursing the remaining salary with the value of the return flight ticket to his hometown.” pg. 7

REF. FPSD-11520

III. Considerations of the Dispute Resolution Chamber

a. Competence and applicable legal framework

23. 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 28 August 2023 and submitted for decision on 22 November 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.

24. 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 an Argentinian player and a Bahraini club.

25. On this point, the Chamber recalled that in accordance with art. 22 par. 1 lit. b) in conjunction with art. 23 of the Regulations, FIFA is competent to deal with employmentrelated disputes between a club and a player of an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level. The wording of the article in question clearly implies that the first condition that needs to be compulsorily fulfilled in order for FIFA to be competent to hear an employment-related dispute between a club and a player is that said dispute has an international dimension.

This means that FIFA is only competent to hear an employment-related dispute of such kind when the parties have different nationalities. By the same token, the DRC noted that the jurisdiction of FIFA is not challenged by the parties.

26. Entering the analysis of the present dispute, the Chamber first noted from the documentation on file the player that while the contract listed the player as a citizen of Bahrein, as confirmed by the BFA, the player is in fact of Argentinian nationality and was registered as such with the club and the BFA.

27. The jurisprudence of the Chamber shows that in cases where a player has dual citizenship, his registration is a determining factor when assessing if the international dimension of the dispute is given, considering that clubs may enjoy benefits in registering a player with a certain nationality, inter alia, due to the specific limitations in the number of foreign players. pg. 8

REF. FPSD-11520

28. Bearing in mind the foregoing, the Chamber observed that in spite of the contents of the contract, the player is Argentinian and was registered as such with the BFA. In view of the aforementioned, the Chamber was satisfied that the claim at hand enjoys international dimension in light of the evidence of file, which denotes that indeed it appears that the contract contains a clerical mistake with regards to the Claimant’s nationality. It follows that the Football Tribunal in general and the DRC in particular is competent to entertain the matter as to the substance.

29. 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 28 August 2023, the May 2023 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

30. 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

31. 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.

1. Main legal discussion and considerations

32. 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 breach of contract. In this context, the Chamber acknowledged that its task was to determine, based on the evidence presented by the parties, whether (a) the claimed amounts had in fact remained unpaid by the Respondent and (b) the contract was terminated without just cause by the Respondent, and the consequences that follow.

(i) Outstanding remuneration pg. 9

REF. FPSD-11520

33. In doing so, the Chamber indicated that the Respondent was liable to pay until the termination of the contract (28 January 2023) the following amounts: - December 2022 and January 2023 salaries (USD 6,000 in total). - Accommodation allowance from August 2022 until January 2023 totalling BHD 3,015.80 or USD 7,990. On this point, the Chamber wished to highlight that the player

is entitled to this amount considering that (i) the accommodation allowance was contractually stipulated and (ii) the player provided receipts showing that he paid this amount for the accommodation. - The reimbursement of the flight ticket (USD 1,567). The Chamber wished to highlight that the player is entitled to this amount considering that (i) it was contractually stipulated, (ii) the player provided evidence as to this flight; and (iii) the Respondent acknowledged the payment of this ticket.

34. In continuation, the Chamber recalled that in the case at hand the club bore the burden of proving that it indeed complied with the financial terms of the contract concluded between the parties. Therefore, the Chamber went on to analyse the arguments and evidence provided by the club. In doing so, the Chamber noted the club presented 5 cheques for the payments performed between September 2022 and December 2023 and two bank statements for the payments performed in January and February 2023.

35. With regards to the cheques, the Chamber recalled that the Claimant contested their veracity. On this point, the Chamber stressed that without entering the discussion whether the document presented by the player was forged or whether the club effectively provided the player those cheques; the Chamber considered that the issuance of a cheque does not sufficiently prove that the amounts were effectively paid to the player, especially when considered that the cheques were issued by a third party and were disputed by the creditor as in the case at hand. In fact, the DRC remarked that a cheque constitutes a form of credit, and therefore cannot amount as proof of payment if not accompanied by the relevant banking documentation to demonstrate that the amounts described therein were effectively cashed.

36. Along these lines, the Chamber mentioned that a document that could confirm the payment of such amounts would be a confirmation of the bank or the club’s bank statements, however, none of those documents were provided. Likewise, the club did not advance any evidence of its link with the company which had issued the cheques.

Therefore, the Chamber concluded that the club failed to meet its burden of proof in order to confirm the alleged payments.

37. In continuation, as to the bank statements, the Chamber noted that the following payments were acknowledged by the player and consequently, were paid by the club to the player: pg. 10

REF. FPSD-11520 - BHD 2,768/approx. USD 7,294.62: said payment in accordance with the Respondent’s response corresponded to the salaries of January and February 2023. - BHD 1,134/approx. USD 2,989.35 said payment in accordance with the Respondent’s response corresponded to the salary of March 2023.

38. In view of the foregoing, the Chamber concluded that the club only paid January 2023 salary

(USD 3,000), and the remaining amounts were paid as part of the compensation due to the Claimant.

39. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which were outstanding under the contract at the moment of the termination: - USD 3,000 for the salary of December. - BHD 3,015.80 as reimbursement of housing expenses. - USD 1,567 as the return flight ticket.

40. Lastly, taking into consideration the player’s request, the principle ne ultra petita and the constant practice of the Chamber in this regard, the latter decided to award the player interest on said remuneration at the rate of 5% p.a. as of 28 January 2023 until the date of effective payment.

(ii) Breach of contract

41. In continuation the Chamber passed to analyse the justice of the early termination of the contract by the Respondent. On this point the Chamber noted that the Respondent did not contest or provide any reason as to the early termination of the contract and consequently, the Chamber concluded that the contract was terminated without just cause.

42. Having stated the above, the Chamber turned to the calculation of the amount of compensation payable to the player by the club in the case at stake. In doing so, the Chamber firstly recapitulated that, in accordance with art. 17 par. 1 of the Regulations, the amount of compensation shall be calculated, in particular and unless otherwise provided for in the contract at the basis of the dispute, with due consideration for the law of the country concerned, the specificity of sport and further objective criteria, including in particular, the remuneration and other benefits due to the player under the existing contract and/or the new contract, the time remaining on the existing contract up to a maximum of five years, and depending on whether the contractual breach falls within the protected period. pg. 11

REF. FPSD-11520

43. In application of the relevant provision, the Chamber held that it first of all had to clarify as to whether the pertinent employment contract contained a provision by means of which the parties had beforehand agreed upon an amount of compensation payable by the contractual parties in the event of breach of contract.

44. In this regard, the Chamber took note of the wording of clause 9.4 of the contract, which established that: “In case, any wishes to cancel the settled contract during its validity, the party wishing to end the contract is obliged to pay an amount of 9000/ - USD (Nine thousand only) as a penalty condition to the other party.”

45. After analyzing the content of the aforementioned clause, the Chamber concluded that it fulfilled the criteria of reciprocity and proportionality, in line with the longstanding jurisprudence of the Football Tribunal, and therefore was to be applied in the case at hand to determine the amount of compensation payable by the Respondent to the Claimant.

46. Consequently, the Chamber decided that the amount of USD 9,000 as per the compensation clause agreed between the parties to the contract, was to be the amount to be paid to the player by the club. However, from that amount the Chamber noted that the

club already paid USD 7,283.97 (USD 7,294.62 – USD 3,000 + USD 2,989.35). In view of the foregoing, the player is entitled to USD 1,716.03 as compensation for breach of contract.

47. Lastly, taking into consideration the Claimant’s request as well as the constant practice of the Chamber in this regard, the latter decided to award the Claimant interest on said compensation at the rate of 5% p.a. as of 28 January 2023 until the date of effective payment. pg. 12

REF. FPSD-11520 ii. Compliance with monetary decisions

48. 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.

49. 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.

50. 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.

51. 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.

52. 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

53. 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.

54. 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.

55. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by any of the parties. pg. 13

REF. FPSD-11520

IV. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, José Augusto Sardon, is partially accepted.

2. The Respondent, Sitra SC, must pay to the Claimant the following amount(s): - BHD 3,015.80 as outstanding remuneration plus 5% interest p.a. as from 28 January 2023 until the date of effective payment; - USD 4,567 as outstanding remuneration plus 5% interest p.a. as from 28 January 2023 until the date of effective payment; and - USD 1,716.03 as compensation for breach of contract without just cause plus 5% interest p.a. as from 28 January 2023 until the date of effective payment.

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. 14

REF. FPSD-11520

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. 15