DRC Overdue Payables
Texto da decisão
REF. FPSD-8431
Decision of the
Dispute Resolution Chamber
passed on 23 March 2023
regarding an employment-related dispute concerning
the player Dusan Celar
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Michele Colucci (Italy), member
Mario Flores Chemor (Mexico), member
CLAIMANT:
Dusan Celar, Serbia
Represented by Mico Petkovic
RESPONDENT:
FC Dinamo 1948 Bucuresti SA, Romania
Represented by schoenherr attorneys at law
pg. 2
REF. FPSD-8431
I. Facts of the case
1.
On 27 January 2022, the Serbain player, Dusan Celar (hereinafter the Claimant or the player)
and the Romanian club, SC Dinamo 1948 SA (hereinafter the Respondent or the club)
concluded an employment contract (hereinafter the Employment Contract) valid as from
27 January until 30 June 2022.
2.
According to Section J of the Employment Contract, the Respondent undertook to pay the
Claimant a monthly salary of RON 16,901 gross, payable “in the first 15 days of the following
month”.
3.
Section O of the Employment Contract stipulated the following:
“Conflicts in connection with the conclusion, execution, modification, suspension or
termination of the individual employment contract shall be settled by the Court with material
and territorial jurisdiction according to the law.”
4.
On 14 November 2022, the Claimant put the Respondent in default and requested payment
of the total amount of RON 52,436 corresponding to his outstanding salaries for the
months of April, May and June 2022 setting a 15 days’ time limit in order to remedy the
default, however to no avail.
II. Proceedings before FIFA
5.
On 30 November 2023, 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
6.
The Claimant requested the Respondent to pay the Claimant an amount of RON 50,712
along with an interest of 5% p.a. as from the due dates.
7.
The Claimant based his claim on the legal principle pacta sunt servanda.
b. Position of the Respondent
8.
In its reply, the Respondent rejected the claim of the Claimant and requested “that the DRC
rule that:
it has no jurisdiction to decide on the dispute submitted by the Player, and therefore reject
the claim as inadmissible;
the Player lacks interest to pursue the dispute before the FIFA DRC, and therefore reject the
claim as inadmissible;
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REF. FPSD-8431
Subsidiarily, that any decision taken on the merits is to be stayed as long as insolvency
proceedings against the Club are ongoing;
On the merits of the case, to reject the claim as partially unfounded for the difference between
the gross and net amounts requested by the Player, with the applicable interest calculated
for such net amounts.”
9.
The Respondent further mentioned that FIFA has no jurisdiction in the matter, in light of its
insolvent status, it moreover mentioned the following:
“On 28 June 2021, insolvency proceedings were opened against its as such, on 22 November
2021, the insolvency court approved a Reorganisation Plan, which from that point on would
govern the manner in which the Club would conduct its affairs for the next three years. All
creditors have to paid according to a payment plan
Consequently, any debts it may accumulate before or during insolvency proceedings are
presently governed by the provisions of the Insolvency Law.
As such, regardless of the source of these claims, or the moment they arose they are subject
to the review of the judicial administrator. The judicial administrator is an independent entity
appointed by the insolvency judge, which receives requests for claims from creditors of the
insolvent companies, as part of different procedures, depending on their particularities.
The procedure described above supersedes the procedure generally applicable to claims
arising from employment contracts filed before the FIFA DRC. Such procedure confers
exclusive jurisdiction for these claims. The result thereof is that the FIFA DRC lacks jurisdiction
to rule on such claims. In other words, the national Insolvency Authorities have exclusive
jurisdiction on such a claim.”
10. On the merits of the case, the Respondent held that while the amount is indeed owed to
the Claimant, “its payment will occur within the insolvency procedure before the judicial
administrator.”
11. Finally, the Respondent asserted that “the Player would not be entitled to the difference
between the gross and net amount of the salary, representing taxes and contributions from the
monthly salary mentioned at art. J.1 Contract”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
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 30 November 2022 and
submitted for decision on 25 March 2023. Taking into account the wording of art. 34 of the
October 2022 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.
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REF. FPSD-8431
13. 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 October 2022 edition), the Dispute
Resolution Chamber is – in principle – competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between a
Serbian player and a Romanian club.
14. The Chamber then recalled that, however, the Respondent contested the competence of
FIFA’s deciding bodies on the basis of Section O of the Employment Contract, alleging that
the competent body to deal with any dispute deriving from the relevant employment
contract is the “Court with material and territorial jurisdiction according to the law”.
15. In this context, Chamber pointed out that it should, first and foremost, analyse whether
this is a clear and exclusive jurisdiction clause in favour of a different deciding body than
the DRC. Consequently, the Chamber analysed the wording of the jurisdiction clause and
concluded that such clause did not clearly and exclusively establish the competence of a
specific court and established that the Respondent’s objection to the competence of FIFA
to deal with the present matter has to be rejected.
16. The members of the Chamber then turned their attention to further argument of the
Respondent concerning the alleged inadmissibility of the claim as the latter is being subject
to a reorganisation plan as part of the ongoing insolvency proceedings.
17. In this respect, the DRC consulted the information available in the Transfer Matching
System (TMS) and concluded that the Respondent is still affiliated to the Romanian Football
Federation (ROU) and participating in competitions under its auspices.
18. Consequently, and in accordance with its well-established jurisprudence, the Chamber
underlined that the insolvency proceedings do not affect the admissibility of the claim nor
jeopardise the jurisdiction of the DRC.
19. 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 October 2022 edition), and
considering that the present claim was lodged on 15 February 2023, the October 2022
edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
20. 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
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REF. FPSD-8431
evidence not filed by the parties, including without limitation the evidence generated by or
within the TMS.
c. Merits of the dispute
21. 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
22. 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 contract, namely three-monthly salaries
of April, May and June 2022.
23. 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.
24. The Chamber first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties.
25. In this respect, the Chamber noted the outstanding amounts remained uncontested, and
the Respondent limited its position to the issue of the insolvency proceedings opened in
Romania. Furthermore, the Chamber took note of the Respondent’s allegations that the
“player would not be entitled to the difference between the gross and net amount of the salary”
yet pointed out that any evidence as to the actual net amount, for example evidence of the
applicable tax rate or previous payment slips.
26. Assessing the evidence on file, the DRC concluded that no reasonable justification was
presented by the Respondent for not having complied with the terms of the contract as per
its exact wording.
27. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith,
the Respondent is held liable to pay the Claimant the outstanding amounts deriving from
the contract concluded between the parties, namely three-monthly salaries.
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REF. FPSD-8431
ii. Consequences
28. Having stated the above, the members of the Chamber observed that the financial
obligations deemed as outstanding in the present case correspond to three times
RON 16,901.
29. 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 amounts
claimed as outstanding under the contract, in total RON 50,712, as detailed above.
30. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest as follows:
−
RON 16,904 as outstanding remuneration plus 5% interest per annum as from
16 May 2022 until the date of effective payment;
−
RON 16,904 as outstanding remuneration plus 5% interest per annum as from
16 June 2022 until the date of effective payment;
−
RON 16,904 as outstanding remuneration plus 5% interest per annum as from
16 July 2022 until the date of effective payment.
iii. Art. 12bis of the Regulations
31. In continuation, the Chamber referred to art. 12bis 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.
32. To this end, the DRC confirmed that the player put the club 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.
33. Accordingly, the members of the Chamber confirmed that the club had delayed a due
payment without a prima facie contractual basis. It followed that the criteria enshrined in
art. 12bis of the Regulations was met in the case at hand.
34. The Chamber further established that by virtue of art. 12bis of the Regulations, it has
competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the second offense (first being Ref. Nr. FPSD-7833) by the club within the
last two years, the Chamber decided to impose a reprimand on the club in accordance
with art. 12bis of the Regulations.
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REF. FPSD-8431
35. In this connection, the DRC 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.
iv. Compliance with monetary decisions
36. 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.
37. 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.
38. Notwithstanding the above, the DRC wished to remark that in accordance with art. 24 par. 3
lit. b) of the Regulations, the aforementioned consequences may be excluded where “the
debtor club was subject to an insolvency-related event pursuant to the relevant national law and
is legally unable to comply with an order.”
39. In this respect, the Chamber recalled the argumentation of the Respondent regarding its
insolvent status. After a thorough analysis of the documentation on file, the DRC concluded
the following:
−
The Respondent is indeed in insolvency-related proceedings;
−
It has been proven to a comfortable satisfaction that there is a reorganisation plan
approved by the court;
−
The Respondent is subject of a judicial administrator and cannot freely execute a
payment order of FIFA.
40. Accordingly, the Chamber established that in casu art. 24 par. 2 of the Regulations shall not
apply, insofar as the Respondent is subject to an insolvency-related proceedings.
41. In view of the above, the DRC decided that if the aforementioned sum plus interest is not
paid within 30 days of notification of this decision, the present matter shall be submitted,
upon request of the Claimant, to the FIFA Disciplinary Committee for its consideration and
formal decision.
42. 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.
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REF. FPSD-8431
d. Costs
43. 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.
44. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-8431
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Dusan Celar.
2.
The claim of the Claimant is accepted.
3.
The Respondent, FC Dinamo 1948 Bucuresti SA, has to pay to the Claimant, the following
amount(s):
− RON 16,904 as outstanding remuneration plus 5% interest per annum as from
16 May 2022 until the date of effective payment;
− RON 16,904 as outstanding remuneration plus 5% interest per annum as from
16 June 2022 until the date of effective payment;
− RON 16,904 as outstanding remuneration plus 5% interest per annum as from
16 July 2022 until the date of effective payment.
4.
A reprimand shall be 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 within 30 days of the notification of this
decision.
6.
If the aforementioned sum plus interest is not paid within 30 days of notification of this
decision, the present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee for its consideration and formal decision.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-8431
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
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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