DRC Overdue Payables
Texto da decisão
REF FPSD-6926
Decision of the
Dispute Resolution Chamber
passed on 14 September 2022
regarding an employment-related dispute concerning the player Juan
Antonio Di Lorenzo
BY:
Gonzalo DE MEDINILLA, Spain
CLAIMANT:
Juan Antonio Di Lorenzo, Italy
Represented by Kosmas Mitsios
RESPONDENT:
O.F. Ierapetras 1970, Greece
Represented by Doxa K. Tsagkaraki
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REF FPSD-6926
I. Facts of the case
1.
On 29 August 2021, the Italian player, Mr Juan Antonio Di Lorenzo (hereinafter: the player
or the Claimant) and the Greek club, O.F. Ierapetras 1970 (hereinafter: the club or the
Respondent), concluded an employment contract valid as from 30 August 2021 until 30
June 2022 (hereinafter: the employment contract).
2.
In accordance with clause 4 of the employment contract, the club undertook to pay the
player the following amounts:
a. EUR 726 as monthly salary payable “no later than the end of each month, for
twelve months a year”;
b. EUR 726 as Christmas gift;
c. EUR 363 as Easter gift; and
d. EUR 363 as leave allowance.
3.
Clause 4.10 of the employment contract read as follows: “Payment of taxes is effected
pursuant to the requirements of the Hellenic legislation”.
4.
On 20 July 2022, the player put the club in default and requested payment of EUR 4,136
within 10 days, corresponding to overdue salaries, Easter gift, and leave allowance.
II. Proceedings before FIFA
5.
On 2 August 2022, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
6.
According to the player, the club acted in bad faith in an attempt convince him that his
remuneration should be delivered gross (i.e. EUR 642 per month, instead of EUR 726).
What is more, the club allegedly failed to pay him a significant part of his remuneration
under the employment contract amounting to EUR 4,136, broken down as follows:
a.
b.
c.
d.
e.
f.
EUR 84 as the balance of the salary of September 2021;
EUR 84 as the balance of the salary of October 2021;
EUR 84 as the balance of the salary of November 2021;
EUR 84 as the balance of the salary of December 2021;
EUR 84 as the balance of the salary of January 2022;
EUR 84 as the balance of the salary of February 2022;
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g.
h.
i.
j.
k.
l.
EUR 726 as the salary of March 2022;
EUR 726 as the salary of April 2022;
EUR 363 as the Easter Gift;
EUR 726 as the salary of May 2022;
EUR 726 as the salary of June 2022; and
EUR 363 as leave allowance.
7.
Given the foregoing, the player also requested to be awarded 5% interest p.a. over the
outstanding remuneration as from each respective due date until the date of effective
payment.
8.
Lastly, he referred to art. 12bis of the FIFA Regulations on the Status and Transfer of
Players (RSTP) and requested FIFA to impose sanctions on the club.
b. Position of the club
9.
On 18 August 2022, the club filed its reply to the player’s claim.
10. In its reply, the club initially stressed that the player would in fact be entitled to a monthly
salary of EUR 642 net i.e. after deducting the player’s contributions and taxes. In addition,
the club filed receipts signed by the player for a total amount of EUR 4,244, broken down
as follows:
a.
b.
c.
d.
e.
f.
g.
h.
EUR 300 on 30 September 2021;
EUR 634 on 1 October 2021;
EUR 642 on 29 December 2021;
EUR 500 on 3 February 2022;
EUR 484 on 1 April 2022;
EUR 642 on 18 April 2022;
EUR 642 on 9 May 2022; and
EUR 400 on 30 April 2022.
11. Therefore, the club concluded that the player’s claim should be entirely rejected.
c. Additional comments of the player
12. On 23 August 2022 and upon request of the FIFA general secretariat, the player submitted
his additional comments on the proof of payments filed by the club together with its reply.
13. All in all, the player acknowledged receipt of the amounts indicated by the club, however
insisted that the club acted in bad faith “given that it failed to consistently comply with its
contractual obligations and thus it was always in arrears as to the player’s monthly salaries”.
14. In light of the above, the player reiterated his statement of claim.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether he was competent to deal with the case at hand. In
this respect, he took note that the present matter was presented to FIFA on 2 August 2022
and submitted for decision on 14 September 2022. Taking into account the wording of
art. 34 of the June 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.
16. Subsequently, 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 lit. b) of the
RSTP (July 2022 edition), the Dispute Resolution Chamber (DRC) is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between an Italian player and a Greek club.
17. Subsequently, the Single 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 2 of the RSTP (July 2022 edition), and considering that the present claim was lodged
on 2 August 2022, the cited edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
18. 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 he 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
19. The competence and the applicable regulations having been established, 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 he will refer only to the facts, arguments and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
20. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for outstanding
remuneration lodged by the player against the club in connection with the employment
contract concluded between them on 29 August 2021.
21. In this context, the player claims to be entitled to an outstanding remuneration of EUR
4,136, corresponding to: (i) the balance of his salaries from September 2021 until February
2022 (EUR 84 each); (ii) the entire salaries from March until June 2022 (EUR 726 each); (iii)
the Easter gift (EUR 363); and (iv) the leave allowance (EUR 363). The club, on the other
hand, referred to the player’s tax liability and argued that the player would in fact be
entitled to a monthly salary of EUR 642 net (i.e. EUR 726 gross, as provided in the
employment contract). As such, it held that all the financial duties were complied with.
22. In view of this dissent between the parties, the Single Judge firstly turned his attention to
the club’s allegations as to the tax deductions to the player’s salaries. In this respect, he
highlighted that whereas clause 4 the employment contract established that the player
would be entitled to monthly salary of EUR 726, it did not specify any amount to be
deducted as taxes and contributions nor set out the corresponding “net” amount. In
parallel, he was also mindful that the remaining of the employment contract is
inconclusive to this extent – including clause 4.1, which only makes reference to the
national law but without providing further guidance in this regard.
23. On this note, the Single Judge determined that the club bore the burden of justifying the
deductions applied over the player’s salaries in light, as well as that it indeed complied
with the financial terms of the employment contract. Nevertheless, he took due
consideration that no evidence to his end was produced by the club, who limited itself to
file untranslated and unspecified proof of payments.
24. In light of the above, the Single Judge determined that the club did not meet its burden of
proof (cf. art. 13, par. 5 of the Procedural Rules). As a consequence, the Single Judge
decided that the club shall be liable to pay the player the balance of his salaries from
September 2021 until February 2022, amounting to EUR 84 each.
25. Along the same lines, the Single Judge considered that the player’s claim for his entire
salaries from March until June 2022, the Easter gift and the leave allowance is
contractually based, supported by documentary evidence, and remained undisputed by
the club. Specifically, he stressed that the club did not advance any proof of having
delivered such concepts to the player, hence determined that the latter shall also be
entitled to the remuneration sought.
26. Lastly and taking the player’s requests for relief into consideration together with the
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jurisprudence of the DRC in this respect, the Single Judge decided that the club should
furthermore be liable to pay the player default interest of 5% p.a. over the outstanding
remuneration as from the due dates until the date of effective payment, as follows:
a. Salaries: as from the first day of each subsequent month;
b. Easter gift: as from 21 April 2022 as argued (and substantiated) by the player
and not contested by the club;
c. Leave allowance: as from the day after the date of the expiry of the
employment contract (i.e. 1 July 2022), insofar as no due date was specified
in the employment contract and the player’s position is not substantiated.
27. In view of the foregoing, the Single Judge concluded that the player’s claim should be
partially accepted.
ii. Article 12bis of the Regulations
28. Having established the above, the Single 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.
29. 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 cure such breach of contract.
30. 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. 12bis
of the Regulations were met in the case at hand.
31. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
he has competence to impose sanctions on the club. On account of the above and bearing
in mind that this is the first offense by the club within the last two years, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
32. In this connection, the Single Judge highlighted 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.
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iii. Compliance with monetary decisions
33. 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 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.
34. 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.
35. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of
notification of the decision, failing which, at the request of the player, 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations
36. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
37. The Single 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.
24 par. 8 of the Regulations.
d. Costs
38. 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.
39. 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.
40. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
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REF FPSD-6926
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Juan Antonio Di Lorenzo, is partially accepted.
2.
The Respondent, Club O.F. Ierapetras 1970, has to pay to the Claimant the following
amount:
-
EUR 84 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until
the date of effective payment;
EUR 84 as outstanding remuneration plus 5% interest p.a. as from 1 November 2021
until the date of effective payment;
EUR 84 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
EUR 84 as outstanding remuneration plus 5% interest p.a. as from 1 January 2022 until
the date of effective payment;
EUR 84 as outstanding remuneration plus 5% interest p.a. as from 1 February 2022
until the date of effective payment;
EUR 84 as outstanding remuneration plus 5% interest p.a. as from 1 March 2022 until
the date of effective payment;
EUR 726 as outstanding remuneration plus 5% interest p.a. as from 1 April 2022 until
the date of effective payment;
EUR 363 as outstanding remuneration plus 5% interest p.a. as from 21 Abril 2022 until
the date of effective payment;
EUR 726 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until
the date of effective payment;
EUR 726 as outstanding remuneration plus 5% interest p.a. as from 1 June 2022 until
the date of effective payment;
EUR 726 as outstanding remuneration plus 5% interest p.a. as from 1 July 2022 until
the date of effective payment; and
EUR 1,089 as outstanding remuneration plus 5% interest p.a. as from 1 May 2022 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning 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:
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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 the ban
shall be of 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 article 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of
Players.
8. 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).
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