DRC Overdue Payables
Texto da decisão
REF FPSD-105
Decision of the
DRC Judge
passed on 30 June 2021
regarding an employment-related dispute concerning the player BORGNINO Marco
BY:
Jon Newman (USA), DRC Judge
CLAIMANT / COUNTER-RESPONDENT:
Marco Borgnino, Argentina
Represented by Mr Ariel Reck
RESPONDENT / COUNTER-CLAIMANT:
Clube Desportivo Nacional, Portugal
Page 2 of 13
REF FPSD-105
I.
FACTS OF THE CASE
1.
On 8 July 2019, the player Marco Borgnino (hereinafter: “the player”; “the Claimant” or
“the Counter-Respondent”) and the club Desportivo Nacional (hereinafter: “the club”; “the
Respondent” or “the Counter-Claimant”) concluded an employment contract (hereinafter:
“the contract”) valid until the end of season 2019/2020 with the possibility to extend it for
four more seasons.
2.
Point 2 of the contract stated the that the player would be entitled to receive an annual net
remuneration amounting to EUR 35,000 payable in 10 instalments of EUR 3,500 each. Said
instalments would be paid until the 5th day of the following month.
3.
Point 5 of the contract provided that the club would pay to the player bonus of participation
and performance based on the results and respective participation.
4.
On the same date, the parties signed a supplementary agreement (hereinafter: “the
agreement”) by means of which the player would be entitled to:
a return flight ticket (Argentina/Funchal/Argentina) at the beginning and at the end of
each sporting season respectively and
EUR 500 as monthly additional payment covering accommodation costs.
5.
On 23 July 2020, the player sent a default notice (cf. art. 12bis RSTP) to the club requesting
payment of EUR 12,400 plus interest as outstanding remuneration granting 10 days to
remedy the default, to no avail.
II.
PROCEEDINGS BEFORE FIFA
6.
On 10 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant/Counter-Respondent
7.
The Claimant lodged the present claim against the Respondent requesting outstanding
remuneration for a total amount of EUR 12,400 plus 5% annual interest from 23 July 2020
(date of the default notice) until the date of effective payment. Moreover, the player
requested the imposition of sporting sanctions to the club.
8.
The Claimant explained that the requested amount of EUR 12,400 is composed as follows:
1) EUR 7,000 as outstanding partial amounts related to the instalments 8th and 9th (EUR
1,750 each) and the full 10th instalment (EUR 3,500) as stipulated in the contract;
2) EUR 500 as accommodation for the month of August 2020 (cf. the agreement);
3) EUR 1,900 as return flight ticket to Argentina (cf. the agreement). and
Page 3 of 13
REF FPSD-105
4) EUR 3,000 as bonus. The player explained that the team agreed to reduce this bonus from
EUR 5,000 to EUR 3,000 and in this regard, he enclosed WhatsApp messages of the team
group.
b.
Position and counterclaim of the Respondent/Counter-Claimant
9.
The Respondent confirmed having signed the contract and the agreement.
10.
The Respondent argued that on 4 May 2020, the club notified the player about the opening
of disciplinary proceedings against him for alleged violations of the club’s internal
regulations as well as disrespect of his duties as football player. The club added that the
player was suspended from is work, without losing the right to his salaries.
11.
The Respondent further argued that on 18 May 2020 after conclusion of the investigation
phase of the disciplinary proceedings, the player was duly notified of the accusation; on 21
May 2020 the player presented his statement and on 3 June 2020 the disciplinary decision
was notified to the player ordering the latter to pay a fine for an amount of EUR 5,833.33
and his suspension was lifted. The disciplinary decision was not appealed by the player.
12.
Moreover, the Respondent alleged that from beginning June 2020 and until the end of his
work contract, the player failed to show up at the club training facilities. The club was
unaware that on 29 May 2020 the player travelled back to Argentina.
13.
The club alleged having initiated legal proceedings against the player due to his violation of
the contract.
14.
The club explained that on 14 July 2020, it notified the player (in his address in Funchal) in
writing the following “having abandoned your job and terminated your employment
contract, your will remain obliged to compensate this club for an amount equal to your
salary and seniority corresponding to the absence period, as shown in article 403 num. 5 of
the Labour Code”.
15.
The Respondent claimed that taking into account that the contract was valid until the end
of season 2019/2020, i.e. 30 June 2020, “it is obvious that the player abandoned his work
and failed to comply with his obligations as a player for the club”. As a result, the
Respondent held that the player is liable to pay compensation to the club for his breach.
16.
The Respondent rejects the following Claimant´s requests:
accommodation (EUR 500) related to the month of August since the contract expired on
30 June 2020;
flight ticket (EUR 1,900) the Respondent argued that the club cannot be held responsible
for the player´s decision to abandon his work earlier (29 May 2020) than the term of the
contract (30 June 2020). Therefore, the Respondent rejected this request as well and
EUR 3,000 as alleged promotion bonus, the Respondent claimed that such bonuses were
not contractually agreed by the parties or promised to the player. The club further argued
Page 4 of 13
REF FPSD-105
that the player did not present any official document issued by the club to sustain this
request.
17.
In view of all the above, the club concluded not having any overdue payables towards the
player and lodged a counterclaim against him for a total amount of EUR 15,833.33 which
is composed as follows: 1) EUR 5,833.33 as disciplinary sanction (cf. decision dated 3 June
2020) and 2) EUR 10,000 as compensation for the premature termination of the contract
by the player (cf. art. 17 par. 1 RSTP) due to the player´s abandonment of work during the
course of the season.
c.
Replica of the Claimant/Counter-Respondent
18.
The player rejected categorically the Respondent´s allegations and counterclaim.
19.
In particular, the player rejected having abandoned his work taking into account that the
season in Portugal ended on 5 May 2020 due to the Covid-19 pandemic. The player further
explained that the Portuguese League decided on 5 May 2020 to restart only the first division
and to declared finished the second division even if 10 matches were pending and the
Respondent was declared the winner of said tournament. The player enclosed documentary
evidence in this respect, i.e. publication by the club in its social media network and a media
report.
20.
The player held that the season 2019/2020 and consequently the contract ended on 5 May
2020.
21.
Moreover, the player stated that on 4 May 2020 (one day before the end of the season and
with matches suspended) the club started disciplinary proceedings against him for “lack of
respect” without further clarification. He claimed being notified only on 7 May 2020, i.e.
after the end of the season as shown in the document enclosed by the club.
22.
The player argued that the Respondent is using the disciplinary proceedings as an excuse to
not pay the due amounts. The player further argued that the club omitted to mention that
on 21 May 2020, the player replied to the disciplinary proceedings stating that there was
not any lack of respect and the issue was due to a misunderstanding and lack of
communication. The player argued that in any case he was no longer under contract
therefore the club could not sanction him.
23.
Furthermore, the player claimed that the decision dated 3 June 2021 imposed an abusive
fine equivalent to two monthly salaries, which was not notified to the player, and
consequently, the player could not appeal said decision.
24.
The player added that in July 2020, the club allegedly lodged a claim against him for alleged
abandonment of work despite the fact that the contract was finished with the premature
end of the season (i.e. on 5 May 2020).
Page 5 of 13
REF FPSD-105
25.
The player underlined that the club did not present any evidence of payment of the
requested remuneration. With regard to the request for EUR 500 it is related to August 2019
and not August 2020, since the club did not present any evidence of payment it is due.
26.
As to the request for EUR 1,900 as flight ticket, the player explained that he travelled several
days after the end of the season (5 May 2020) due to the difficulties to find flights to his
home country at that time due to the restrictions related to Covid-19.
27.
Regarding the bonus, the player reiterated that it was contractually agreed in point 5 of the
contract and that the amount was agreed with the team´s captain something normal in
football. Then, the captain informed the rest of the team that the bonus was reduced to
EUR 3,000. The player claimed that the club did not present any evidence to contest the
WhatsApp chat of the team
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
28.
First of all, the DRC Judge (hereinafter also referred to as “the Judge” or “the DRC Judge”)
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 10 August 2020 and submitted for
decision on 30 June 2021. Taking into account the wording of art. 21 of the currently in
force edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: “the Procedural Rules”), the edition 2021 of
the Procedural Rules is applicable to the matter at hand.
29.
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 February 2021) he is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between an Argentinean player and a Portuguese club.
30.
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 February 2021),
and considering that the present claim was lodged on 10 August 2020, the June 2020
edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at
hand as to the substance
b.
31.
Burden of proof
The DRC Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 Judge stressed the
Page 6 of 13
REF FPSD-105
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence
not filed by the parties.
32.
In this respect, the DRC Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
33.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the Judge entered into the merits of the dispute. 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 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.
i. Main legal discussion and considerations
34.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and took note that it remains uncontested by the parties that they signed the
contract and the agreement and that said contract was originally valid until the end of the
season 2019/2020.
35.
The DRC Judge pointed out that the parties have opposing positions regarding the end of
the employment relationship. On the one hand, the DRC Judge noted that the Claimant
argued that the contract was prematurely ended by the national authorities on 5 May 2020
due to the pandemic and requested alleged outstanding remuneration for a total amount
of EUR 12,400 plus interest. On the other hand, the DRC Judge pointed out that the
Respondent claimed that the contract was valid until 30 June 2020 and that the Claimant
abandoned his work as from beginning of June 2020. The Respondent lodged a
counterclaim against the Claimant requesting a disciplinary fine and compensation for the
alleged premature termination of the employment relationship by the player.
36.
To start with, the DRC Judge focussed his attention to the player´s allegation and
documentary evidence presented by the latter indicating that the second division
competition corresponding to the season 2019/2020 was prematurely ended on 5 May 2020
by the Portuguese football authorities.
37.
Subsequently, the DRC Judge reiterated that the Respondent argued that the contract was
valid until the end of the season 2019/2020, i.e. until 30 June 2020.
38.
In this respect, the Judge observed that the Respondent during the investigation of this
matter did not contest specifically this argument of the Claimant. What is more, the DRC
Judge acknowledged that in its social media network the Respondent confirmed the fact
Page 7 of 13
REF FPSD-105
that the Portuguese authorities ended prematurely the second division league (i.e. “Liga
Pro”) due to Covid-19.
39.
Therefore, the DRC Judge concluded that since the Portuguese authorities prematurely
ended the season 2019/2020, on 5 May 2020 the employment relationship between the
parties was terminated de facto on that date.
40.
Consequently, the DRC Judge held that the player was not obliged to perform his duties in
favour of the club as from 5 May 2020 and therefore he was not committed to be present
at the club´s premises in the month of June 2020.
41.
In this context, the DRC Judge pointed out that the Respondent argued having initiated legal
proceedings against the player due to his alleged breach of the contract but it failed to
provide information and to present documentary evidence in this respect.
42.
In light of all the aforementioned, the DRC Judge decided to reject the Respondent´s
counterclaim for compensation since the contract was ended by the authorities on 5 May
2020 and as a result, after that date the player did not have to fulfil any contractual
obligations towards the club.
43.
In continuation, the DRC Judge focused his attention to the Respondent´s request for a
disciplinary fine amounting to EUR 5,833.33.
44.
The DRC Judge acknowledged that the Claimant contested the application of the relevant
disciplinary sanction taking into account that he was not notified of the decision and
therefore he was not in a position to appeal it.
45.
In this respect, the DRC Judge observed that the Respondent alleged having notified on 3
June 2020 the disciplinary decision to the Claimant by post.
46.
The DRC Judge referred to the post receipt enclosed by the Respondent as evidence and
noted that said receipt was not translated into one of the FIFA languages in accordance with
art. 9 par.1 e) of the Procedural Rules.
47.
In light of the above, the DRC Judge stated that there was no clear evidence on file that the
Claimant was properly notified on 3 June 2020 of the disciplinary decision and as a result,
that the Respondent followed a due process while imposing this fine on the Claimant.
48.
In this context, the DRC Judge highlighted that it is of utmost importance that proceedings
fully respect the due process of law, inter alia, the rights of the Claimant to appeal the
relevant decision.
49.
Furthermore, the DRC Judge was keen to emphasize that the imposition of a fine, or any
other available financial sanction in general, shall not be used by clubs as a means to set off
outstanding financial obligations towards players.
Page 8 of 13
REF FPSD-105
50.
Based on the aforementioned considerations, the DRC Judge rejected the Respondent´s
claim for EUR 5,833.33 as a disciplinary sanction.
51.
In continuation, the DRC Judge focussed his attention to the Claimant´s requests for
outstanding remuneration.
52.
To start with, the Judge noted that the Claimant requested the amount of EUR 7,000 as
outstanding remuneration related to part of the instalments 8th and 9th (EUR 1,750 each)
and the full 10th instalment (EUR 3,500) as stipulated in point 2 of the contract. Moreover,
the Judge took note that the Claimant requested the amount of EUR 500 as additional
amount to cover accommodation costs for the month of August 2019 based on the
agreement.
53.
In this respect, the DRC judge underlined that the Respondent failed to reply to the default
notice sent by the Claimant on 23 July 2020. What is more, the DRC Judge highlighted that
the Respondent did not present any evidence of payment of the claimed remuneration.
54.
In light of the above, the DRC Judge concluded that the Respondent owes the amount of
EUR 7,500 as outstanding remuneration to the Claimant.
55.
In continuation, the DRC Judge focused his attention to the Claimant´s request for EUR
3,000 as bonus.
56.
In this regard, the DRC Judge underlined that the parties agreed in point 5 of the contract
that the club would pay to the player bonus of participation and performance based on the
results and respective participation.
57.
In this context, the DRC Judge referred to the messages interchanged between the members
of the team and concluded that it was clear that the players accepted to reduce their
bonuses and at the end accepted to receive an amount of EUR 3,000.
58.
As a result, the Judge concluded that the Claimant is entitled to receive from the Respondent
the sum of EUR 3,000 as bonuses (cf. point 5 of the contract).
59.
Subsequently, the DRC Judge focussed his attention to the Claimant´s request for EUR 1,900
as flight ticket enclosing evidence of one ticket for the route Paris/Buenos Aires.
60.
The DRC Judge noted that in the agreement the Respondent compromised to pay to the
Claimant a return flight ticket (Argentina/Funchal/Argentina) at the beginning and at the
end of each sporting season.
61.
Therefore, the DRC Judge stated that based on the premature termination of the contract
decided by the relevant national authorities and since it was an obligation contractually
agreed by the parties, the Claimant should be reimbursed with an amount to cover a flight
ticket to return to his home country.
Page 9 of 13
REF FPSD-105
62.
The DRC judge concluded that the Claimant was entitled to receive the price of a one-way
plane ticket from Funchal (Portugal) to Buenos Aires (Argentina), the price of which was set
at CHF 1,432.55 by FIFA Travel.
ii. Consequences
63.
At this stage, the DRC Judge established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
64.
Consequently, the DRC judge decided that, in accordance with the general legal principle
of pacta sunt servanda, the club is liable to pay to the player outstanding remuneration in
the amounts of EUR 10,500 and CHF 1,432.55.
65.
Furthermore, the DRC judge took note the Claimant´s request for interest at rate of 5% per
annum from 23 July 2020.
66.
In this respect, and in accordance with the well-established jurisprudence of the Dispute
Resolution Chamber, the Judge decided to award the Claimant interest at the rate of 5%
p.a. on the amounts of EUR 10,500 and CHF 1,432.55 as of the date of the default notice,
i.e. 23 July 2020 until the date of effective payment.
iii. Compliance with monetary decisions
67.
In continuation, taking into account the consideration under number 63 above, the 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.
68.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he 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.
69.
In this respect, the DRC judge 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.
70.
Finally, taking into account the consideration under number 30. 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.
Page 10 of 13
REF FPSD-105
71.
In this regard, the DRC 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 and for the
maximum duration of three entire and consecutive registration periods.
72.
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, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
73.
The DRC Judge recalled that the above-mentioned bans 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.
74.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
d.
75.
Costs
The DRC judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the DRC judge decided that no procedural
costs were to be imposed on the parties.
IV. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant/Counter-Respondent, Marco Borgnino, is partially accepted.
2.
The Respondent/Counter-Claimant, Clube Desportivo Nacional, has to pay to the
Claimant/Counter-Respondent, the following amounts:
- EUR 10,500 as outstanding remuneration plus 5% interest p.a. as from 23 July 2020 until
the date of effective payment and
- CHF 1,432.55 as flight ticket plus 5% interest p.a. as from 23 July 2020 until the date of
effective payment.
3.
Any further claims of the Claimant/Counter-Respondent are rejected.
4.
The counterclaims of the Respondent/Counter-Claimant are rejected.
Page 11 of 13
REF FPSD-105
5.
A warning is imposed on the Respondent/Counter-Claimant.
6.
The Claimant/Counter-Respondent is directed to immediately and directly inform the
Respondent/Counter-Claimant of the relevant bank account to which the
Respondent/Counter-Claimant must pay the due amounts.
7.
The Respondent/Counter-Claimant shall provide evidence of payment of the due amounts
in accordance with this decision to [email protected], duly translated, if applicable, into one
of the official FIFA languages (English, French, German, Spanish).
8.
In the event that the amounts due, plus interest as established above are not paid by the
Respondent/Counter-Claimant within 45 days, as from the notification by the
Claimant/Counter-Respondent of the relevant bank details to the Respondent/CounterClaimant, the following consequences shall arise:
1. The Respondent/Counter-Claimant 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. The
aforementioned ban mentioned will be lifted immediately and prior to its complete
serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amounts as per in this decision are still not paid by the
end of the ban of three entire and consecutive registration periods, the present matter
shall be submitted, upon request, to the FIFA Disciplinary Committee.
9. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 12 of 13
REF FPSD-105
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
Page 13 of 13