DRC Overdue Payables
Texto da decisão
REF. FPSD-15372
Decision of the
Dispute Resolution Chamber
passed on 30 October 2024
regarding an employment-related dispute concerning the player Sergio
Castel Martinez
BY:
Dana MOHAMED AL-NOAIMI (Qatar)
CLAIMANT:
Sergio Castel Martinez, Spain
Represented by Javier Roman Rovir
RESPONDENT:
Anorthosis Famagusta, Cyprus
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REF. FPSD-15372
I. Facts of the case
1.
On 23 June 2023, the Spanish player, Sergio Castel Martinez (hereinafter: the Player or the
Claimant), and the Cypriot club, Anorthosis Famagusta (hereinafter: the Club or the
Respondent) entered into an employment contract (hereinafter: the Contract) valid as from
22 June 2023 until 30 June 2025.
2.
In accordance with the Contract, the Respondent undertook to pay to the Claimant the
following amounts:
“From 31/08/2023 until 31/05/2024, a monthly gross salary of EUR 6,316.18, a total
annual of EUR 63,161.77 (5,000 net monthly, a total annual of EUR 50,000 net).
From 31/08/2024 until 31/05/2025, a monthly gross salary of EUR 6,316.18, a total
annual of EUR 63,161.77 (5,000 net monthly, a total annual of EUR 50,000 net).”
3.
On 24 June 2023, the Parties concluded an additional agreement (hereinafter: the First
Additional Agreement) to update the remuneration agreed in the Contract. In particular, the
Parties agreed on the following remuneration:
“For the period starting from 31/08/2023 and ending 31/05/2024 the total additional
amount of EUR 190,000 (one hundred and ninety thousand euro) net and subject to the
terms of the present agreement, in 10 (ten) equal monthly instalments of EUR 19,000
(nineteen thousand euro) net.
For the period starting from 31/08/2024 and ending 31/05/2025 the total additional
amount of EUR 190,000 (one hundred and ninety thousand euro) net and subject to the
terms of the present agreement, in 10 (ten) equal monthly instalments of EUR 19,000
(nineteen thousand euro) net”.
4.
5.
By correspondence dated 1 April 2024, the Claimant put the Respondent in default of
payment of EUR 86,000 setting a time limit of 15 days in order to remedy the default. In
particular, the Player requested the following amounts:
•
EUR 14,000 for the salary of December;
•
EUR 24,000 for the salary of January;
•
EUR 24,000 for the salary of February;
•
EUR 24,000 for the salary of March.
On 11 April 2024, the Parties signed a second additional agreement (hereinafter: the Second
Additional Agreement) through which the Club acknowledged that the amount of EUR
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REF. FPSD-15372
106,000 arising from the Contract and the First Additional Agreement remained
outstanding.
6.
In addition, the parties amended the initial expiration date of the Contract. The new
expiration date was 30 May 2024.
7.
The Second Additional Agreement stated that the Club shall pay the Player the net amount
of EUR 154,000 as follows:
•
EUR 24,000 payable on 30 April 2024;
•
EUR 24,000 payable on 30 May 2024;
•
EUR 24,000 payable on 30 June 2024;
•
EUR 32,000 payable on 30 July 2024;
•
EUR 25,000 payable on 30 August 2024;
•
EUR 25,000 payable on 30 September 2024.
8.
According to the clause 4.1 of the Second Additional Agreement, the amount EUR 154,000
is defined as “Basic Consideration”.
9.
Finally, the parties agreed on the following penalty clause:
“If the Club fails to comply with the payment of at least one instalment in accordance
with the Schedule set forth in Clause 4.2, the total Basic Consideration will accrue late
payment interest of 7%, notwithstanding the Player’s right to early termination of this
Agreement.
By way of example and for illustrative purposes, if the Club timely pays the first (1st)
and second (2nd) instalments of the Schedule, but not the third (3rd) instalment, interest
shall accrue in favor of the Player equivalent to seven percent (7%) of the total Basic
Consideration, i.e., interest accrued amounting to ten thousand seven hundred and
eighty euros (EUR 10,780), which will be added to the total Basic Consideration.”
10. On 10 May 2024, the Player sent a default notice to the Club stating the following:
“I would like to remind you that according to the agreed payment schedule, the first
payment of €24,000 should have been made on April 30, 2024. However, I have only
received €3,000. Therefore, in accordance with paragraph 4.3 of clause 4 of the
Second Supplementary Agreement, the total Basic Consideration amount will accrue
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REF. FPSD-15372
late payment interest of 7% of the outstanding amounts, which would amount to
€10,780”.
11. On 30 May 2024, the Player sent another default notice to the Club stating the following:
“The Club still owes me EUR 151,000 out of the EUR 154,000 of Basic Consideration
provided for in the Second Supplementary Agreement. This is because on 30 April
2024, I only received EUR 3,000 out of the first payment of EUR 24,000 agreed in the
Schedule of Clause 4.2 of the Second Supplementary Agreement.
Therefore, the Club owes me an additional amount of EUR 10,780 corresponding to
the accrue late payment interest of 7% of the outstanding amounts, in accordance
with Clause 4.3 of the Second Supplementary Agreement”.
12. On 11 June 2024, the Player sent a termination letter to the Club invoking clause 4.3 of the
Second Additional Agreement according to which “If the Club fails to comply with the
payment of at least one instalment in accordance with the Schedule set forth in Clause 4.2,
the total Basic Consideration will accrue late payment interest of 7%,notwithstanding the
Player’s right to early termination of this Agreement”.
13. Accordingly, the Player informed the Club that he wishes to terminate the employment
relationship with the Club and that they have 10 days to remedy their default and pay the
following outstanding amounts:
•
EUR 151,000 arising from the Second Additional Agreement;
•
EUR 10,780 corresponding to the accrue late payment penalty provided in Clause
4.3 of the Second Additional Agreement.
II. Proceedings before FIFA
14. On 26 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
15. The Claimant requested the total amount of EUR 161,780 net arising from the Second
Agreement. In particular, the Claimant requested the following amounts:
•
EUR 21,000 due on 30 April 2024;
•
EUR 24,000 due on 30 May 2024;
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REF. FPSD-15372
•
EUR 24,000 due on 11 June 2024;
•
EUR 32,000 due on 11 June 2024;
•
EUR 25,000 due on 11 June 2024;
•
EUR 25,000 due on 11 June 2024;
•
EUR 10,780 due on 11 June 2024.
16. In addition, the Player requested 5% interest over the above amounts as from the due
dates until the date of effective payment.
17. Finally, the Player alleged that the amount of EUR 106,000 became due on the date when
the Player sent the termination letter, i.e. 11 June 2024.
b. Position of the Respondent
18. Despite being invited to do so, the Respondent did not reply to the claim.
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REF. FPSD-15372
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the Single Judge)
analysed whether she was competent to deal with the case at hand. In this respect, she
took note that the present matter was presented to FIFA on 26 July 2024 and submitted for
decision on 30 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.
20. Furthermore, the Single Judge 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 (June 2024 edition), the Single Judge is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Spanish player and a Cypriot club.
21. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she 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 26 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
22. 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 she 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
23. Having established the competence and the applicable regulations, 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 she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for assessing the matter at hand.
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REF. FPSD-15372
i. Main legal discussion and considerations
24. The Single Judge then moved to the substance of the matter, and took note of the fact that
the Claimant is requesting the outstanding remuneration arising from the Second
Agreement.
25. The Single Judge has noted that the Parties concluded an employment contract valid from
22 June 2023 until 30 June 2025.
26. In addition, the Single Judge noted that the parties concluded the Second Additional
Agreement through which they agreed that the Respondent shall pay to the Claimant the
amount of EUR 154,000. Furthermore, the parties amended the initial expiration date of
the Contract to 30 May 2024.
27. Therefore, based on the above and the documentation on file, the Contract expired on 30
May 2024. The Single Judge also took note of the fact that in the Player’s subsequent
transfer in TMS, it is declared that the Contract ended on 30 May 2024.
28. However, the Single Judge observed that the Player sent a termination letter on 11 June
2024, i.e. after the expiration of the Contract.
29. In this context, the Single Judge acknowledged that her task was to determine which was
the amount due and the respective due dates. In doing so, the Single Judge underlined that
the Respondent failed to present their reply to the claim of the Claimant, and therefore her
decision would be made on the basis of the documentation on file, that is, the
argumentation and evidence exclusively filed by the Claimant, in line with article 14 par. 1
of the Procedural Rules.
30. In this regard, the Single Judge observed that the Player requested the total amount of EUR
161,780 net arising from the Second Additional Agreement.
31. The Claimant alleged that, in view of clause 4.3 of the Second Additional Agreement, part
of the total amount requested corresponding to EUR 106,000 became due on 11 June 2024,
i.e. on the date when the Player sent the termination letter.
32. In this regard, as observed by the Single Judge, clause 4.3 does not appear to be an
acceleration clause that would make the total amount due if certain conditions were met,
such as the late payment of one of the instalments. Clause 4.3 of the Second Additional
Agreement only stipulates a penalty amount that had to be paid in case of late payment
from the Club.
33. Therefore, in view of the above and the evidence on file, the Single Judge decided that the
amount of EUR 106,000 did not fall due on 11 June 2024.
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REF. FPSD-15372
34. Having established the above, the Single Judge assessed which amounts have fallen due
and took note of the following payment schedule agreed by the parties in the Second
Additional Agreement:
•
EUR 24,000 net payable on 30 April 2024;
•
EUR 24,000 net payable on 30 May 2024;
•
EUR 24,000 net payable on 30 June 2024;
•
EUR 32,000 net payable on 30 July 2024;
•
EUR 25,000 net payable on 30 August 2024;
•
EUR 25,000 net payable on 30 September 2024.
35. In this regard, the Single Judge acknowledged that the Claimant confirmed having received
EUR 3,000 from the instalment of EUR 24,000 due on 30 April 2024.
36. Furthermore, the Single Judge noted that the Respondent has not replied to the claim and
therefore, it has not been disputed that the above amounts remain outstanding.
37. Nevertheless, the Single Judge observed that the claim was lodged at the FIFA Legal Portal
on 26 July 2024.
38. In view of the above, the Single Judge determined that the two instalments of EUR 25,000
each, due on 30 August and 30 September 2024 were premature as they were due after
the date that the claim was lodged.
39. In this regard, the Single Judge decided to award the total net amount of EUR 101,000
corresponding to the following amounts:
•
EUR 21,000 due on 30 April 2024;
•
EUR 24,000 payable on 30 May 2024;
•
EUR 24,000 payable on 30 June 2024;
•
EUR 32,000 payable on 30 July 2024.
40. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% p.a. on the outstanding amounts as follows:
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REF. FPSD-15372
•
5% interest over the amount of EUR 21,000 as from 1 May 2024 until the date of
effective payment;
•
5% interest over the amount of EUR 24,000 as from 31 May 2024 until the date of
effective payment;
•
5% interest over the amount of EUR 24,000 as from 1 July 2024 until the date of
effective payment;
•
5% interest over the amount of EUR 32,000 as from 31 July 2024 until the date of
effective payment.
41. Finally, the Single Judge had to assess whether the penalty was triggered. In this context,
the Single Judge initially recalled the wording of clause 4.3 of the Second Additional
Agreement which stipulated that:
“If the Club fails to comply with the payment of at least one instalment in accordance
with the Schedule set forth in Clause 4.2, the total Basic Consideration will accrue late
payment interest of 7%, notwithstanding the Player’s right to early termination of this
Agreement.
By way of example and for illustrative purposes, if the Club timely pays the first (1st)
and second (2nd) instalments of the Schedule, but not the third (3rd) instalment, interest
shall accrue in favor of the Player equivalent to seven percent (7%) of the total Basic
Consideration, i.e., interest accrued amounting to ten thousand seven hundred and
eighty euros (EUR 10,780), which will be added to the total Basic Consideration.”
42. Accordingly, the Single Judge noted that only one condition was to be met in order to
trigger the penalty clause, i.e., the Respondent failing to pay at least one instalment on their
due date. In the case, at hand, the Respondent failed to pay the above 4 instalments, and
consequently, the clause 4.2 of the Second Additional Agreement was triggered.
43. The Single Judge then assessed whether the penalty of the clause 4.3 of the Second
Additional Agreement is proportionate.
44. The Single Judge recalled that in line with the jurisprudence of the Dispute Resolution
Chamber, a penalty clause is considered abusive when its amount is unreasonable and
clearly exceeds the admissible amount in consideration of the principles of justice and
equity. In the case at hand, according to clause 4.3 the late payment of the instalments will
accrue 7% over the “Basic Consideration”, i.e. EUR 154,000 x 7%= 10,780.
45. In this regard, the Single Judge decided to award this amount, as it is reasonable and
proportionate in line with the jurisprudence of the Football Tribunal. Notwithstanding the
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REF. FPSD-15372
above, by recalling the principle of ne bis in idem, the Single Judge established that no
interest should be applicable over the penalty.
ii. Sanctions
46. Having stated the above, the Single Judge referred to art. 12 bis 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. 12 bis
par. 4 of the Regulations.
47. To this end, the Single Judge confirmed that the Player put the Club in default of payment
of the amounts sought, which had fallen due for more than 30 days, and granted the Club
with 10 days to remedy their default.
48. Accordingly, the Single Judge also confirmed that the Club had delayed a due payment
without a prima facie contractual basis. It followed that the criteria enshrined in art. 12 bis
of the Regulations were met in the case at hand.
49. The Single Judge further established that by virtue of art. 12 bis par. 4 of the Regulations,
she has competence to impose sanctions on the Club. On account of the above and bearing
in mind that this is the second offense by the Club (first offence: FPSD- 15236) within the
last two years, the Single Judge decided to impose a reprimand on the Club in accordance
with art. 12 bis par. 4 lit. a) of the Regulations.
50. In this connection, the Single Judge highlighted that a repeat offence will be considered as
an aggravating circumstance and lead to more severe penalty in accordance with art. 12
bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
51. 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 her 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.
52. 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.
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REF. FPSD-15372
53. 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.
54. 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.
55. The Single Judge recalled that the above-mentioned ban will be lifted immediately and prior
to her complete serving upon payment of the due amounts, in accordance with art. 24 par.
8 of the Regulations.
d. Costs
56. 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
57. 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.
58. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
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REF. FPSD-15372
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Sergio Castel Martinez, is partially accepted.
2.
The Respondent, Anorthosis Famagusta, must pay to the Claimant the following amount(s):
- EUR 101,000 net as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount of EUR 21,000 as from 1 May 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 24,000 as from 31 May 2024 until the date
of effective payment;
- 5% interest p.a. over the amount of EUR 24,000 as from 1 July 2024 until the date of
effective payment;
- 5% interest p.a. over the amount of EUR 32,000 as from 31 July 2024 until the date
of effective payment.
- EUR 10,780 as penalty.
3.
Any further claims of the Claimant are rejected, without prejudice to any claim that may be
filed with FIFA for the fifth and sixth payment instalment set forth in the contract at the
basis of the present claim, which were premature at the date the claim was lodged.
4.
A reprimand 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.
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REF. FPSD-15372
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-15372
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
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