DRC Overdue Payables
Texto da decisão
REF FPSD-3742
Decision of the
Dispute Resolution Chamber
passed on 25 November 2021
regarding an employment-related dispute concerning the player Robert Piris
Da Motta
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Stefano Sartori (Italy), member
CLAIMANT:
Robert Piris Da Motta, Paraguay
Represented by Mr Tiago Rodrigues Bastos
RESPONDENT:
Genclerbirligi SK, Turkey
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REF FPSD-3742
I.
Facts of the case
1.
On 11 September 2020, the player from Paraguay, Robert Piris da Motta (hereinafter: the
Claimant or player), and the Turkish club, Genclerbirligi SK (hereinafter: the Respondent or
club) signed an employment contract (hereinafter: contract) valid as from the date of
signature until 31 May 2021, while the player was on loan from Clube de Regatas do
Flamengo.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
amounts:
- EUR 40,000 net in September 2020 as "sign on fee";
- EUR 40,000 net on 1 October 2020;
- EUR 40,000 net on 31 October 2020;
- EUR 40,000 net on 30 November 2020;
- EUR 40,000 net on 1 January 2021;
- EUR 40,000 net on 31 January 2021;
- EUR 40,000 net on 28 February 2021;
- EUR 40,000 net on 1 April 2021;
- EUR 40,000 net on 30 April 2021;
- EUR 40,000 net on 31 May 2021;
- EUR 40,000 net on 1 July 2021.
3.
On 6 July 2021, the Claimant put the Respondent in default and requested payment of EUR
200,000, corresponding to the 5 last instalments of the contract, within 15 days.
II. Proceedings before FIFA
4.
On 21 September 2021, 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
5.
The player requested payment of EUR 200,000, corresponding to the 5 last instalments
of the contract along with "interest" as of the due dates.
6.
In his claim, the Claimant pointed out that the payment remained outstanding even though
he put the club in default.
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b. Position of the Respondent
7.
In its reply, the club rejected the claim.
8.
The club pointed out that it recently had a change of its management board and that COVID19 led to a "significant financial and administrative restraint" and that the club is therefore
"unavailable to determine the true debt" towards the player.
9.
Nevertheless, the club assured that it would examine the debt and pay it to the player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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 21 September 2021 and submitted for
decision on 25 November 2021. Taking into account the wording of art. 34 of the October
2021 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.
11. 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 (August 2021 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from Paraguay
and a Turkish club.
12. 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 (August 2021 edition), and
considering that the present claim was lodged on 21 September 2021, the August 2021
editionedition of said regulations (hereinafter: the Regulations) is applicable to the matter at
hand as to the substance.
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b. Burden of proof
13. 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 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
14. 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
15. The foregoing having been established, the DRC moved to the substance of the matter, and
took note of the fact that the parties dispute the outstanding remuneration the player is
entitled to.
16. In this context, the Chamber acknowledged that its task was to detail to which amounts the
player is entitled to or if the club fulfilled its financial obligations as per contract.
17. On account of the above, the members of the Chamber noted that the parties concluded a
contractual relationship as from 11 September 2020 until 31 May 2021 the remuneration set
out in point I.2.
18. Consequently, the DRC established that the player was entitled to a total amount of EUR
440,000 during the contractual relationship. In this regard, the DRC took notice that the
player requested payment of EUR 200,000, corresponding to the last five instalments of the
contract.
19. The Chamber then turned its attention to the argument of the Respondent that COVID-19
led to a "significant financial and administrative restraint" and that the club is therefore
"unavailable to determine the true debt" towards the player.
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20. Having said that, the DRC Judge wished to refer to the fact that, in light of the worldwide
COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at
providing appropriate guidance and recommendations to member associations and their
stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and
ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020,
FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides
clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
21. For the present dispute, it is important to note that based on the COVID-19 Guidelines, as
well as the FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in
any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an
employer from paying a player’s salary.
22. The DRC wished to emphasize that the Respondent failed to submit any documentation in
order to proof that it complied with FIFA’s COVID regulations regarding unilateral variations.
23. In this context, the Chamber considered that the arguments raised by the Respondent cannot
be considered a valid reason for non-payment of the monies claimed by the Claimant, in other
words, the reasons brought forward by the Respondent in its defence do not exempt the
Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
ii. Consequences
24. Consequently, the DRC decided that, in accordance with the general legal principle of pacta
sunt servanda, the Respondent is liable to pay to the Claimant outstanding remuneration in
the total amount of EUR 200,000 plus 5% interest p.a. as of the respective due dates.
iii. Compliance with monetary decisions
25. In continuation, the Chamber 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.
26. To this end, the Chamber confirmed that the player put the club in default of payment of the
amounts sought, which had fallen due more than 30 days before (i.e. USD 120,000 out of
the claimed EUR 200,000), and granted the club a 10-day deadline to cure such breach of
contract.
27. Accordingly, the Chamber confirmed that the club 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.
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28. The Chamber further established that by virtue of art. 12bis par. 4 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 third offense by the club within the last two years, the Chamber decided to
impose a fine on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.
29. In this connection, the Chamber 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.
30. 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.
31. 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. The overall maximum
duration of the registration ban shall be of up to three entire and consecutive registration
periods.
32. Therefore, bearing in mind the above, the DRC 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.
33. 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.
34. The DRC 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.
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d. Costs
35. 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.
36. 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.
37. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Robert Piris Da Motta, is accepted.
2.
The Respondent, Genclerbirligi SK, has to pay to the Claimant, the following amount(s):
- EUR 40,000 as outstanding remuneration plus 5% interest p.a. as from 1 March 2021 until
the date of effective payment;
- EUR 40,000 as outstanding remuneration plus 5% interest p.a. as from 2 April 2021 until
the date of effective payment;
- EUR 40,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021 until
the date of effective payment;
- EUR 40,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2021 until
the date of effective payment;
- EUR 40,000 as outstanding remuneration plus 5% interest p.a. as from 2 July 2021 until the
date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
USD 15,000. The fine is to be paid within 45 days of notification of the present decision to
FIFA to the bank account indicated on the next page.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), 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.
6.
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.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
CONTACT INFORMATION
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