DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 15 April 2020,
by S tijn Boey kens (Belgium), DRC judge,
on the claim presented by the player,
Jonathan Boareto dos Reis , Brazil,
represented by Mr Kiril Kalinkov
as Claimant
against the club,
S anat Naft Abadan FC, IR Iran
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 15 August 2018, the Brazilian player, Jonathan Boareto dos Reis (hereinafter: the
Claimant) and the Iranian club, Sanat Naft Abadan FC (hereinafter: the Respondent)
signed an employment contract valid as from the same date until 31 May 2019.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant the total remuneration of USD 200,000, payable in three instalments,
the last of which was due on 31 May 2019.
3.
By correspondence dated 26 November 2019, the Claimant put the Respondent in
default of payment of USD 57,300 relating to unpaid portion of the third instalment,
setting a 10 days’ time limit in order to remedy the default.
4.
On 9 December 2019, the Claimant lodged a claim against the Respondent in front of
FIFA asking that the Respondent be ordered to pay to him overdue payables in the
amount of USD 57,300 to unpaid portion of the third instalment, which fell due on 31
May 2019, in accordance with the employment contract.
5.
The Claimant further asks to be awarded interest of 5% p.a. as of 31 May 2019, and
required that the Respondent is ordered to pay procedural costs.
6.
On 17 December 2019, the FIFA Secretariat invited the Respondent to file its position
on the claim until 23 January 2020. By such date, no correspondence was received
from the Respondent by FIFA.
7.
On 14 March 2020, the Respondent wrote to FIFA and claimed it filed its statement of
defence on 14 January 2020.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the matter
at hand. In this respect, he took note that the present matter was submitted to FIFA
on 9 December 2019. Taking into account the wording of art. 21 of the 2019 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
March 2020) he is competent to deal with the matter at stake, which concerns an
Player Jonathan Boareto dos Reis, Brazil / Club Sanat Naft Abadan FC, IR Iran
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employment-related dispute with an international dimension between a Brazilian
player and an Iranian club.
3.
Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (edition
March 2020), and considering that the present claim was lodged on 9 December 2019,
the October 2019 edition of said regulations (hereinafter: Regulations) is applicable
to the matter at hand as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation on file. However, the DRC judge emphasised that
in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
5.
Having said this, the DRC judge acknowledged that the Claimant and the Respondent
were bound by an employment contract in accordance with which the Claimant was
entitled to receive a total remuneration of USD 200,000, payable in three instalments,
the last of which was due on 31 May 2019.
6.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that
the Respondent has overdue payables towards him in the total amount of USD 57,300
corresponding to unpaid portion of the third installment.
7.
In this context, the DRC judge took particular note of the fact that, on 26 November
2019, the Claimant put the Respondent in default of payment of the aforementioned
amount, setting a 10 days’ time limit in order to remedy the default.
8.
Consequently, the DRC judge 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).
9.
Subsequently, the DRC judge took into account that the Respondent, for its part,
claimed to have duly filed its statement of defence on 14 January 2020. However, the
DRC judge observed that no correspondence was received by FIFA from the
Respondent by such date.
10.
What is more, the DRC judge recalled the contents of article 12 par. 3 of the Procedural
Rules, according to which any party claiming a right on the basis of an alleged fact
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shall carry the burden of proof. In this regard, the DRC judge observed that no
evidence was filed by the Respondent to demonstrate that it had properly submitted
its position on the claim filed by the Claimant.
11.
Consequently, the DRC judge decided that the Respondent failed to present its
response to the claim of the Claimant, in spite of having been invited to do so. In this
way, the DRC judge considered that the Respondent renounced its right to defence
and thus accepted the allegations of the Claimant.
12.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
13.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant the amount of USD 200,000, payable in three instalments, the last of
which was due on 31 May 2019.
14.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
15.
On account of the aforementioned considerations, the DRC judge established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of USD
57,300, corresponding to the unpaid part of the third instalment, which fell due on
31 May 2019.
16.
In addition, bearing in mind the considerations under numbers II./7. and II./8. above
the DRC judge established that the Respondent had delayed a due payment for more
than 30 days without a prima facie contractual basis.
17.
Consequently, the DRC judge decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
total amount of USD 57,300.
18.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must
pay to the Claimant interest of 5% p.a. on the amount of USD 57,300 as from 31 May
2019 until the date of effective payment.
19.
Notwithstanding, in due observance of the Dispute Resolution Chamber longstanding
jurisprudence and in line with article 18 par. 4 of the Procedural Rules, the DRC judge
decided to reject the Claimant’s request for payment of procedural costs.
Player Jonathan Boareto dos Reis, Brazil / Club Sanat Naft Abadan FC, IR Iran
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20.
In continuation, taking into account the consideration under number II./16. above, the
DRC 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.
21.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. In this context, the DRC judge
highlighted that, on 7 August 2019, the Respondent had already been found to have
delayed a due payment for more than 30 days without a prima facie contractual basis,
as a result of which a warning had been imposed on the Respondent by the DRC judge.
22.
Moreover, the DRC judge referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating circumstance
and lead to a more severe penalty.
23.
Bearing in mind the above, the DRC judge decided to impose a reprimand on the
Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.
24.
Furthermore, taking into account the consideration under number II./3. above, the
DRC judge referred to par. 1 and 2 of art. 24bis 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.
25.
In this regard, the DRC judge pointed out 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 and for the maximum duration of three entire and consecutive registration
periods.
26.
Therefore, bearing in mind the above, the DRC judge decided that, in the event that
the Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering
any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
27.
Finally, the DRC 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. 24bis par. 3 of the Regulations.
Player Jonathan Boareto dos Reis, Brazil / Club Sanat Naft Abadan FC, IR Iran
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III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Jonathan Boareto dos Reis, is partially accepted.
2.
The Respondent, Sanat Naft Abadan FC, has to pay to the Claimant the amount of USD
57,300 plus interest at the rate of 5% p.a. as from 31 May 2019 until the date of
effective payment.
3.
Any further request filed by the Claimant is rejected.
4.
A reprimand is imposed on the Respondent.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present decision,
of the relevant bank account to which the Respondent must pay the amount
mentioned under point 2. above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance
with point 2. above to FIFA to the e-mail address [email protected], duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due plus interest in accordance with point 2. above is not
paid by the Respondent w ithin 45 day s as from the notification by the Claimant of
the relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
9.
In the event that the aforementioned sum plus interest is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall
Player Jonathan Boareto dos Reis, Brazil / Club Sanat Naft Abadan FC, IR Iran
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be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the players’ Status Committee or
the DRC. Where such decisions contain confidential information, 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 20 of the Rules Governing the Procedures
of the players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with the Code of sports-related arbitration. Within another
10 days following the expiry of the time limit for filing the statement of appeal, the
appellant shall file a brief stating the facts and legal arguments giving rise to the appeal
with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2, CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber judge:
______________________________________
Emilio García Silvero
Chief Legal & Compliance Officer
Player Jonathan Boareto dos Reis, Brazil / Club Sanat Naft Abadan FC, IR Iran
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