DRC Overdue Payables
Texto da decisão
REF. FPSD-15386
Decision of the
Dispute Resolution Chamber
passed on 02 October 2024
regarding an employment-related dispute concerning the player Denislav
Minkov Angelov
BY:
Calum BEATTIE (Scotland)
CLAIMANT:
Denislav Minkov Angelov, Bulgaria
Represented by Stepan Artyun Kirkorov
RESPONDENT:
EENDRACHT AALST, Belgium
pg. 2
REF. FPSD-15386
I. Facts of the case
1.
On 21 August 2023, the Bulgarian player, Denislav Minkov Angelov (hereinafter: the Player
or the Claimant), and the Belgian club, Eendracht Aalst (hereinafter: the Club or the
Respondent) entered into an employment contract (hereinafter: the employment contract)
valid as from 28 August 2023 until 30 June 2025 with a monthly net salary of EUR 2,150 for
the season 2023/2024 and EUR 2,500 for the season 2024/2025.
2.
On 8 May 2024, the Claimant put the Respondent in default and requested payment of EUR
25,850 corresponding to his outstanding salaries according to the employment contract;
setting a time limit of 15 days in order to remedy the default.
3.
On 30 May 2024, the Claimant and the Respondent concluded a mutual termination
agreement of the employment contract (hereinafter: the termination agreement).
4.
The termination agreement reads as follows:
“1. The parties agree that by the day of signing this agreement, they terminate
by mutual agreement the labor contract concluded between them on
21.08.2023. The club undertakes to carry out all necessary actions, including
to reflect in all FIFA registers (incl. the TMS) the termination of the labor
contract between by mutual consent within one week of signing this
agreement.
2. The club undertakes to pay the player unpaid and due wages under the
employment contract for the period from December 2023 to May 2024 in the
amount of € 20,400 (twenty thousand four hundred Euros).
3. In view of the early termination of the contract, the club undertakes to pay
the player compensation in the amount of € 15,000 (fifteen thousand Euros).
4. The total amount owed by the club to the Player is € 35,400 (thirty-five
thousand four hundred Euros).
5. The parties agree that the amount will be spread in installments as follows:
• Immediate Payment:
- The Club agrees to pay the Player an amount of€ 5,000 (five thousand Euros)
immediately upon signing this agreement.
• Remaining Payment:
pg. 3
REF. FPSD-15386
- Second installment with a final date of 15.06.2024 in the amount of€ 5,000
(five thousand Euros).
- Third installment with a final date 30.06.2025 in the amount of€ 12,500
(twelve thousand five hundred Euros).
- Fourth and last installment with a final date of 15.07.2024 In the amount of
€12,900 {twelve thousand nine hundred Euros).
6. In the event that the club falls into a delay in paying its obligations to the
Player, the parties agree that a penalty interest of 10% is due on the unpaid
part of the obligation for each month of delay.
7. Full Settlement: Upon receipt of the payments as described above, the Player
acknowledges that no further amounts are owed to him by the Club.”
5.
On 18 July 2024, the Claimant put the Respondent in default and requested payment of
EUR 31,525 corresponding to the outstanding amounts and penalty according to the
termination agreement, setting a 10 days’ time limit in order to remedy the default.
II. Proceedings before FIFA
6.
On 29 July 2024, the Claimant filed the claim at hand before FIFA. A summary of the parties’
position is detailed below.
a. Position of the Claimant
7.
The Claimant lodged a claim against the Respondent for overdue payables.
8.
In his claim, the Claimant argued that the Respondent failed to pay the outstanding
remuneration according to the termination agreement. Moreover, he mentioned that the
conditions of the penalty pursuant to clause 6 of the termination agreement were met and
therefore that he is entitled to that amount.
9.
Accordingly, the Claimant requested EUR 31,525 and presented the following breakdown:
“a. 5 500 EUR (five thousand five hundred Euros), including an installment in
the amount of 5 000 EUR (five thousand Euros) with a final date 15.06.2024,
according to Art. 5, second point, first indent of the [termination agreement],
and penalty interest in the amount of 500 EUR (five hundred Euros) for the
period from 16/06/2024 until 18/07/2024.
pg. 4
REF. FPSD-15386
b. 13 125 EUR (thirteen thousand one hundred and twenty-five Euros),
including an installment in the amount of 12 500 EUR (twelve thousand five
hundred Euros) with a final date 30.06.2024, according to Art. 5, second point,
second indent of the [termination agreement], and penalty interest in the
amount of 625 EUR (six hundred and twenty-five Euros) for the period from
01/07/2024 until 18/07/2024.
Please note that there has been a technical error when writing the date, as the
year 2025 was indicated incorrectly in the claim, the correct year is the current
year – 2024.
c. 12,900 EUR (twelve thousand nine hundred Euros), with a final date
15.07.2024 according to Art. 5, second point, third indent of the [termination
agreement].
i.
Total amount of the dispute 31 525 EUR (Thirty-one thousand five
hundred and twenty-five Euros), the currency is Euro, with official
currency code: EUR.
ii.
Contractual basis of the amounts – [termination agreement].”
b. Position of the Respondent
10. The Respondent failed to provide its position within the time limit granted by the FIFA
general secretariat.
pg. 5
REF. FPSD-15386
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 29 July 2024 and submitted for
decision on 2 October 2024. 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.
12. Furthermore, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (June 2024
edition), he is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a player from Bulgaria and a club
from Belgium.
13. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition), and
considering that the present claim was lodged on 29 July 2024, the June 2024 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
14. The Single Judge 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 Single Judge
stressed the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which he 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
15. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge emphasised that in the following
considerations he will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
pg. 6
REF. FPSD-15386
i. Main legal discussion and considerations
16. The Single Judge then turned to the substance of the matter, stating that it concerned a
claim for outstanding remuneration brought by the Claimant against the Respondent on
the basis of the termination agreement.
17. The Single Judge found that the Claimant requested payment of the last three instalments
of EUR 30,400 and a penalty of EUR 1,125. As to “third instalment”, the Claimant also
mentioned that this amount was due on 20 June 2024 rather than 2025.
18. In light of the above, the Single Judge established that in the case at hand the Respondent
bore the burden of proving that it indeed complied with the financial terms of the
termination agreement concluded between the parties.
19. Nevertheless, the Single Judge underlined that the Respondent failed to present its reply
to the claim of the Claimant, and therefore concluded that: (i) his decision would be made
on the basis of the documentation on file, that is, the argumentation and evidence filed by
the Claimant, in line with art. 14 par. 1 of the Procedural Rules; and, consequently, (ii) the
Respondent had failed to discharge his burden of proof.
20. As regards the third instalment allegedly due on 30 June 2025, the Single Judge found that
(i) the third instalment was listed before the fourth instalment due on 15 July 2024, (ii) the
Claimant had clearly stated in his claim that this was an error, which the Respondent did
not contest, and (iii) the settlement sum awarded in the termination agreement comprised
outstanding remuneration for which the payment dates were prior to the date of its
signature.
21. Therefore, the Single Judge was convinced that the parties' intention while entering into
the termination agreement was to determine that this sum should in fact have been paid
on 30 June 2024.
22. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the principal
amount of EUR 30,400.
23. The Single Judge subsequently analysed the penalty clause contained in the termination
agreement, which stipulated that the Respondent should pay the Claimant a monthly
penalty of 10% for delay in any payment stipulated thereunder.
24. In this respect, the Single Judge recalled that, in accordance with the well-established
jurisprudence of the Football Tribunal, penalty clauses may be freely entered into by
contractual parties and may be considered acceptable, in the event that the pertinent
written clause meets certain criteria, such as proportionality and reasonableness. The
Single Judge further highlighted that whenever the payment of a penalty is triggered in
pg. 7
REF. FPSD-15386
connection with a default of payment that persist in time (i.e., it is not only paid once but
increases over time with the non-payment), these obligations tend to be considered as
hidden interest rates rather than penalties – and are to be limited to a rate of 18% per
annum.
25. While applying the above to the present case, the Single Judge considered that a “penalty”
of 10% per month (i.e., hidden interest) would amount to 120% per year, which he
considered to be disproportionate and excessive in light of the standard practice of the
Football Tribunal.
26. In view of the foregoing, the Single Judge decided that the interest rate provided for in
clause 6 of the termination agreement should be reduced to the maximum of18% per
annum in principle as from the respective due dates of each instalment until the date of
effective payment.
27. Notwithstanding the foregoing, the Single Judge considered that the Player had limited his
request for relief to 18 July 2024 and therefore decided to award the following amounts in
order not to go ultra petita:
- 18% interest p.a. over the amount of EUR 5,000 as from 16 June 2024 until 18 July 2024;
- 18% interest p.a. over the amount of EUR 12,500 as from 1 July 2024 until 18 July 2024.
28. The Single Judge also noted that the Claimant did not request a penalty / interest over the
fourth instalment, which was therefore not awarded.
ii. Art. 12bis of the Regulations
29. In continuation, the Single Judge 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.
30. To this end, the Single Judge confirmed that the Claimant put the Respondent in default of
payment of the amounts sought, which had fallen due more than 30 days before, and
granted the club a 10-day deadline to cure such breach of contract.
31. Accordingly, the Single Judge confirmed that the Respondent had delayed a due payment
without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations was met in the case at hand.
32. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the first offense by the club within the last two years, the Single Judge
pg. 8
REF. FPSD-15386
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
33. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
34. Finally, taking into account the applicable Regulations, the Single Judge 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.
35. In this regard, the Single Judge 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.
36. Therefore, bearing in mind the above, the Single Judge 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.
37. 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.
38. The Single Judge 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
39. The Single Judge 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.
pg. 9
REF. FPSD-15386
40. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art.
25 par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
41. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-15386
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Denislav Minkov Angelov, is partially accepted.
2.
The Respondent, EENDRACHT AALST, must pay to the Claimant the following amount(s):
- EUR 30,400 as outstanding remuneration;
- 18% interest p.a. over the amount of EUR 5,000 as from 16 June 2024 until 18 July 2024;
- 18% interest p.a. over the amount of EUR 12,500 as from 1 July 2024 until 18 July 2024.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
6.
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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-15386
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12