DRC Overdue Payables
Texto da decisão
REF FPSD-3702
Decision of the
Dispute Resolution Chamber
passed on 27 January 2022
regarding an employment-related dispute concerning the player Emmanuel
Adebayor
COMPOSITION:
Clifford J. Hendel (USA/France), Chairperson
Andre Megale (Brazil), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Emmanuel Adebayor, Great Britain
Represented by Mr Koray Akalp
RESPONDENT:
Club Olimpia, Paraguay
Represented by Mr Ariel Reck
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REF FPSD-3702
I.
Facts of the case
1.
On 06 February 2020, the player Emmanuel Adebayor (hereinafter: “the player” or “the
Claimant”) and the Club Olimpia (hereinafter: “the club” or “the Respondent”) concluded an
employment contract (hereinafter: “the contract”) valid from 06 February 2020 until 31
December 2020.
2.
Article 2.I.I. of the contract stated that the club should complied with the payment of USD
375,000 net as signing on fee, payable in two instalments. The first one of USD 200,000 net
on 14 February 2020 and the second instalment of USD 175,000 net on 15 June 2020.
3.
Article 2.I.II. of the contract stated that the club should pay to the player the total annual
salary of USD 2,000,000 net, payable as follows:
In February 2020, the total amount of USD 200,000 net.
From March to December 2020 a monthly remuneration of USD 180,000 net.
4.
On 30 June 2020, the player and the club concluded a termination agreement (hereinafter:
“the agreement”) putting to an end their employment relationship on an amicable basis.
5.
The introduction of the agreement stated that at that date the club only paid USD 200,000
as part of the signing on fee to the player on 14 February 2020, remaining unpaid the monthly
remunerations from March to June 2020.
6.
Article 1.2 of the agreement stated that the club would pay to the player the total amount
of USD 650,000 net. The payment would be in four instalments as follows:
First instalment: USD 50,000, payable no later than three days after the signature of the
agreement
Second instalment: USD 200,000 on 30 August 2020.
Third instalment: USD 200,000 on 30 October 2020.
Fourth instalment: USD 200,000 on 30 December 2020.
7.
Article 1.3 of the agreement stated that “Subject to timely payment of the first instalment in
clause 1.2 and fulfilment of the condition in clause 1.5 below, the Parties hereby irrevocably
waive and renounce any lights, and/or claims they may have against each other to pursue any
legal action and/or initiate any Judicial or extrajudicial proceeding against each other, whether
concerning fees, salaries, wages, bonus, etc., based the Employment Contract.”
8.
Article 1.5 of the agreement stated that the club and the player agreed that the validity of
the agreement depended on the effective payment of the first instalment. If the club failed
to pay it before the due date, the agreement would be considered null and void and the
contract would continue to be effective entitling the player to receive all his overdue and
future remuneration. In addition, in such case, the club agreed to pay his total overdue
remuneration with the accrued interest starting from the respective due date of each overdue
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payment. Furthermore, the club agreed to made arrangements for the player to provide his
services.
9.
Article 1.6 of the agreement stated that if the club failed to pay the subsequent instalments
on their due dates, the remaining instalments would become due and payable by the club to
the player without the need of a notice or a warning. In addition, the club would pay to the
player a monthly interest of 1% of the overdue amount until the date of the effective
payment.
10. On 02 September 2021, the player sent a default notice to the club requesting the payment
of the total amount of USD 600,000 corresponding to amounts due an unpaid according to
the agreement signed by both parties. (cf. article 1.2 of the agreement). In addition, the player
requested the total accrued interest of 1% per month starting from 31 August 2020 until the
date of the effective payment. In addition, the player stated that the club´s failure was in
violation of the FIFA Regulations on the Status and Transfer of Players, according to its article
12bis. Moreover, the player granted to the club 10 days following the reception of the notice
to fulfil their obligations.
11. The club did not reply to the aforementioned default notice sent by the player.
II. Proceedings before FIFA
12. On 17 September 2021, 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
13. According to the Claimant, the Respondent failed to honour the payments agreed by the
parties in the agreement.
14. The requests for relief of the Claimant, were the following:
USD 200,000 net as the second instalment of the agreement with its accrued interest of
1% per month starting from 31 August 2020 until the date of effective payment and
USD 400,000 net as the third and fourth instalment of the agreement with its accrued
interest of 1% per month starting from 1 September 2020 until the date of effective
payment.
15. In addition, the player recognized having received the first instalment of USD 50,000 net on
time.
16. Furthermore, the player requested the imposition of sporting and disciplinary sanctions to the
club for the violation of the financial obligations with the player, according to article 12bis of
the FIFA RSTP.
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17. Moreover, the player requested to establish that the costs of the procedure should be paid by
the club.
b. Position of the Respondent
18. According to the Respondent, they have already paid the amount of USD 105,000 to the
Claimant on the following dates:
USD 48,500 on 03 July 2020
USD 1,500 with the instruction to be paid to a third person on 10 June 2020.
USD 40,000 on 22 September 2020
USD 15,000 on 06 November 2020
USD 50,000 on 08 February 2021
19. Moreover, the club claimed the inapplicability of the interests requested by the player as in
his default notice he did not wait the 30 days regulated on the article 12bis of the RSTP for
the delay in due payments. Therefore, the club requested to apply an interest of 5% per
annum since the date of the default notice as the only compensation beside the amounts
owed.
20. Furthermore, the club asked for the inapplicability of the sanctions in article 12bis of the RSTP
since the player did not wait the 30 days regulated on that article for the delay in due
payments to send his default notice. Also, because he accepted partial payments at a later
date without reservation acting in bad faith.
c. Additional comments of the Claimant
21. Upon FIFA´s request, the player sent to FIFA some additional comments of the alleged
payments mentioned by the club in its reply.
22. Regarding to the payments of USD 48.500 on 03 July 2020 and USD 1,500 with the
authorization dated on 29 June 2020 signed by the player instructing to transfer the amount
on behalf of the player´s tattoo artist, Mr. Samir Arzamendia, the player stated having always
recognized receipt of the first instalment for USD 50.000 and that there was no dispute
between the parties on this point.
23. With regard to the payment of USD 15,000 transferred to the account of Pablo Adrián Rivero
Bonilla, the player rejected having received said payment since the bank account was not
owned or known by him and it had no connection to him.
24. In relation to the payments of USD 40,000 on 22 September 2020 and USD 50,000 on 08
February 2021, the player checked with his bank in Togo and confirmed having received these
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two payments. The player highlighted that the club neither when they were completed nor
when the player sent the default notice to the club on 02 September 2021 never notified
those two payments to him.
25. In addition, the player held that the club incurred on a mistake as they communicated that
the conditions of article 12bis of the RSTP were not fulfilled and that 30 days had not passed
over the date of the second instalment. The player stated that the default notice was sent on
02 September 2021, not on 02 September 2020, and that more than 365 days passed over
the original payment date.
26. In conclusion, the player requested the following payments:
“the interest of 1% per month starting from 31 August 2020 until 22 September 2020
for the amount of USD 40.000”.
“the interest of 1% per month starting from 31 August 2020 until 8 February 2021 for
the amount of USD 50.000”.
USD 510,000 net as the remaining amount owed by the club of the second, the third
and the fourth instalment of the agreement with its accrued interest of 1% per month
starting from 1 September 2020 until the date of effective payment.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Dispute Resolution Chamber (hereinafter also referred to as “the Chamber” or
“the 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 17 September 2021 and
submitted for decision on 27 January 2022. Taking into account the wording of art. 34 of the
October 2021 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.
28. 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 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 British player and a
Paraguayan club.
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 (August 2021 edition), and
considering that the present claim was lodged on 17 September 2021, the August 2021
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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.
i. 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 the parties strongly dispute the payment of certain financial
obligations by the Respondent as per the agreement, namely:
the interest of 1% per month starting from 31 August 2020 until 22 September 2020 for
the amount of USD 40.000”.
“the interest of 1% per month starting from 31 August 2020 until 8 February 2021 for the
amount of USD 50.000”.
USD 510,000 net as the remaining amount owed by the club related to the second, third
and fourth instalment of the agreement with its accrued interest of 1% per month starting
from 1 September 2020 until the date of effective payment.
33. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
34. The Chamber took particular note of the fact that, on 2 September 2021, the Claimant put
the Respondent in default of payment of USD 600,000, setting a time limit of 10 days in order
to remedy the default.
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35. Consequently, the DRC concluded that the Claimant had duly proceeded in accordance with
art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must
have put the debtor club in default in writing and have granted a deadline of at least ten days
for the debtor club to comply with its financial obligation(s).
36. Subsequently, the Chamber acknowledged that the Respondent submitted evidence of
having allegedly paid to the player a total amount of USD 105,000, i.e.
• USD 48,500 on 03 July 2020
• USD 1,500 with the instruction to be paid to a third person on 10 June 2020
• USD 40,000 on 22 September 2020
• USD 15,000 on 06 November 2020
• USD 50,000 on 08 February 2021
37. In this respect, the Chamber noted that the Claimant confirmed having received the payments
made by the club on 10 June 2020 (USD 1,500) and 3 July 2020 (USD 48,500) which were
related to the first instalment (USD 50,000).
38. The Chamber recalled that the Claimant lodged the present claim requesting the payment of
the second, third and fourth instalments established in the agreement.
39. Therefore, the DRC concluded that the payments made by the Respondent on 10 June 2020
and 3 July 2020 related to the first instalment are irrelevant for the matter at stake.
40. In continuation, the Chamber focused its attention to the payment of USD 15,000 allegedly
paid by the Respondent to the Claimant on 6 November 2020.
41. The Chamber acknowledged that the Claimant contested said payment since the amount of
USD 15,000 was transferred to a bank account of a third person.
42. In this regard, the DRC pointed out that the Respondent failed to present evidence of being
authorized by the Claimant to transfer the relevant payment to a different bank account.
43. As a result, the Chamber concluded that the payment of USD 15,000 performed by the
Respondent on 6 November 2020 should be disregarded.
44. Finally, the Chamber focused its attention to the payments made by the Respondent on 22
September 2020 and 8 February 2021 for USD 40,000 and USD 50,000 respectively.
45. In this respect, the Chamber took note that the Claimant confirmed having received said
payments.
46. The Chamber underlined that the evidence provided by the Respondent does not prove the
payment of the total amount claimed as outstanding by the Claimant. Furthermore, the DRC
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held that no reasonable justification was presented by the Respondent for not having fully
complied with the terms of the agreement.
ii. Consequences
47. At this stage, the Chamber established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
48. 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 outstanding
amount deriving from the agreement concluded between the parties, i.e. USD 510,000.
49. In continuation, the Chamber focussed his attention to the Claimant´s request for an interest
at a rate of 1% monthly on the outstanding amounts based on article 1.6 of the agreement.
50. The Chamber pointed out that article 1.6 of the agreement clearly established a default
monthly interest of 1% in case of late payment of the instalments by the Respondent.
51. At this stage, the Chamber took note of the Respondent´s argument that the special interest
should not apply since the player allegedly did not wait 30 days as established in article 12bis
of the Regulations.
52. In this regard, the Chamber pointed out that the outstanding instalments established in the
agreement were due on 30 August 2020; 30 October 2020 and 30 December 2020 and that
the Claimant sent the default notice to the Respondent on 2 September 2021, i.e. after than
30 days of delay.
53. As a result, the Chamber pointed out that the cited Respondent´s argument should be
rejected.
54. Furthermore, the Chamber held that based on its standard practice, a default interest of 12%
p.a. is considered reasonable.
55. Therefore, the Chamber decided to award an annual interest of 12% on the late partial
payments made by the Respondent (i.e. USD 40,000 and USD 50,000) and on the outstanding
amount of USD 510,000 as from the respective due dates until the date of effective payment.
56. In this respect, the DRC recalled that the Respondent made two partial payments, i.e. USD
40,000 on 22 September 2020 and USD 50,000 on 8 February 2021. Consequently, the
Chamber decided to apply an annual interest of 12% from the due date of the second
instalment (cf. articles 1.2 and 1.6 of the agreement) until the date of the each of the partial
payments.
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57. With regard to the outstanding amount of USD 510,000, the Chamber pointed out that the
annual interest of 12% should apply as follows:
On USD 110,000 as balance of the second instalment, from 31 August 2020 until the
date of effective payment;
On USD 200,000 as outstanding third instalment, from 31 October 2020 until the date
of effective payment and
On USD 200,000 as outstanding fourth instalment, from 31 December 2020 until the
date of effective payment.
iii. Compliance with monetary decisions
58. In continuation, taking into account the consideration under number 47. above, the Chamber
referred to art.12bis par. 2 of the Regulations, which stipulates that any club found to have
delayed a due payment for more than 30 days without a prima facie contractual basis may be
sanctioned in accordance with art. 12bis par. 4 of the Regulations.
59. The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence to
impose sanctions on the Respondent. Therefore, and in the absence of the circumstance of
repeated offence, the DRC judge decided to impose a warning on the Respondent in
accordance with art. 12bis par. 4 lit. a) of the Regulations.
60. In this respect, the DRC wished to highlight that a repeated offence will be considered as an
aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6
of the Regulations.
61. 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.
62. 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.
63. 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.
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64. 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.
65. 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
66. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Emmanuel Adebayor, is accepted.
2.
The Respondent, Club Olimpia, has to pay to the Claimant, the amount of USD 510,000 plus
12 % interest p.a. as follows:
- on the amount of USD 40,000 from 31 August 2020 until 22 September 2020;
- on the amount of USD 50,000 from 31 August 2020 until 8 February 2021;
- on the amount of USD 110,000 from 31 August 2020 until the date of effective payment;
- on the amount of USD 200,000 from 31 October 2020 until the date of effective payment;
- on the amount of USD 200,000 from 31 December 2020 until the date of effective
payment.
3.
A warning is imposed on the Respondent.
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 the ban shall
be of 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 article 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
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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).
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