DRC Overdue Payables
Texto da decisão
REF FPSD-2418
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 18 August 2021
regarding an employment-related dispute concerning the player Oscar Eduardo
Estupiñan Vallesilla
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Oscar Eduardo Estupiñan Vallesilla, Colombia
Represented by Javier Ferrero Muñoz and Juan Alfonso Prieto Huang
RESPONDENT:
Denizlispor Kulubu, Turkey
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REF FPSD-2418
I.
FACTS OF THE CASE
1.
On 29 July 2019, the Colombian player, Oscar Eduardo Estupiñan Vallesilla (hereinafter:
Claimant or player), and the Turkish club, Denizlispor Kulubu (hereinafter: Respondent or
club) concluded an employment contract (hereinafter: the contract) valid from 29 July 2019
to 31 May 2020.
2.
Pursuant to clause 1.2 of the contract, for the 2019/2020 football season the Claimant was
entitled to a total net salary of EUR 260,000, payable in 10 instalments as follows:
1)
2)
3)
4)
5)
6)
7)
8)
9)
10)
EUR 26,000 net on 31 August 2019;
EUR 26,000 net on 30 September 2019;
EUR 26,000 net on 31 October 2019;
EUR 26,000 net on 30 November 2019;
EUR 26,000 net on 31 December 2019;
EUR 26,000 net on 31 January 2020;
EUR 26,000net on 28 February 2020;
EUR 26,000 net on 31 March 2020;
EUR 26,000 net on 30 April 2020;
EUR 26,000 net on 31 May 2020.
3.
According to the Claimant, the contract was extended until 31 July 2020, “for well-known
reasons which derives from the global pandemic caused by COVID-19.” In this context, no
written extension of the contract was provided by the Claimant. According to the
information available on FIFA TMS, the Respondent concluded a loan agreement - relating
to the Claimant - valid until 30 June 2020.
4.
By correspondence dated 21 October 2020, the Claimant put the Respondent in default,
granting it a 10 days’ deadline to pay the amount of EUR 146,000 net corresponding to
outstanding salaries of February 2020 (EUR 16,000), March 2020 (EUR 26,000), April 2020
(EUR 26,000), May 2020 (EUR 26,000), June 2020 (EUR 26,000) and July 2020 (EUR
26,000).
5.
On 3 November 2020, the Respondent sent a correspondence to the Claimant, stating,
inter alia, the following:
“As you know, Covid-19 Pandemic affected all the football clubs in the world. Our club
has suffered too much from this pandemic. In this regard, we tried to contact with the
player for a possible discount and settlement agreement on 22.08.2020. However, we
could not get any answers. Therefore, our board of management has decided to impose a
10% discount on the receivables of the player. This discount is equal to 33.000 Euros. The
decision of the board of management has been sent to the e-mail address of the player.
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REF FPSD-2418
To summarize, according to our records, the player has only 61.000 Euros remaining
receivables from our club. We would like to make a settlement agreement and pay the
receivables of the player. “
II.
PROCEEDINGS BEFORE FIFA
6.
On 30 April 2021, the Claimant filed the claim at hand before FIFA.
a.
The claim of the Claimant
7.
According to the Claimant, the Respondent failed to comply with the terms of his default
notice sent on 21 October 2020.
8.
The requests for relief of the Claimant, were the following:
(a)
that the Respondent pay to the Claimant the outstanding remuneration in the
amount of EUR 146,000 relating to outstanding salaries of February (EUR 16,000),
March (EUR 26,000), April (EUR 26,000), May (EUR 26,000), June (EUR 26,000) and
July 2020 (EUR 26,000), plus 5% interest p.a. from the respective due dates until the
date of effective payment;
(b)
that sanctions based on art. 12bis be imposed on the Respondent; and
(c)
that the Respondent bear all procedural cost in the proceedings.
b.
Position of the Respondent
9.
In its reply to the claim the Respondent provided a list of payment receipts indicating that
throughout the 2019-2020 season a considerable amount of payments was made to the
Claimant and therefore the Respondent reject all claims of the Claimant.
10.
The Respondent further explained that neither party is responsible for the COVID-19
pandemic therefore, “we would like to indicate that the player cannot demand 2 extra
salaries for the period which was played in June and July instead of April and May.
Therefore, we hereby reject the request of June and July salaries which are not written in
the contract between the parties.”
11.
Additionally, the Respondent indicated that it had been financial impacted by the COVID19 pandemic.
12.
In conclusion the Respondent, requested the following relief:
“Reject all the claims of the claimant”
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REF FPSD-2418
c.
13.
Additional comments of the Claimant
On 5 July 2021, the Claimant confirmed the following regarding the payment documents
provided by the Respondent:
“Indeed, all the payment documents provided by the Respondent shows that the Club only
has paid the salaries of the Player until February 2020.
Therefore, the pending salaries of the Claimant until the end of the sporting season
2019/2020 (i.e., until July 2020) still remains totally unpaid.”
14.
The Claimant indicated that the Respondent made a partial salary payment of EUR 10,000
in February 2020 and therefore the amount of EUR 16,000 net remained outstanding.
15.
In conclusion, the Claimant stipulated that the Respondent has “always paid the salaries
(until February 2020) with considerable and unjustifiable delay.
III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
16.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as 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 submitted to FIFA on 30 April 2021 and presented
for decision on 18 August 2021. Taking into account the wording of art. 21 of the January
2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned
edition of the Procedural Rules is applicable to the matter at hand.
17.
Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 in 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players ( February 2021 edition ), DRC Judge is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Colombian player and a Turkish club.
18.
Subsequently, the DRC Judge 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 Player (February 2021 edition), and
considering that the present claim was lodged on 30 April 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
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REF FPSD-2418
19.
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 DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
20.
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.
21.
Merits of the dispute
The competence of the DRC Judge and the applicable regulations having been established,
the DRC 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 DRC Judge 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 DRC Judge moved to the substance of the
matter, and took note of the fact that on 29 July 2019, the Claimant and the Respondent
concluded an employment contract valid from 29 July 2019 to 31 May 2020.
23.
The DRC Judge observed that the Claimant lodged a claim in front of FIFA against the
Respondent, asserting that the Respondent had not fulfilled its contractual obligations
towards him. More specifically, the Claimant indicated that the Respondent had failed to
pay his salaries for the months of February to July 2020.
24.
The DRC Judge noted that the Respondent, in its reply to the claim, argued that it suffered
financially due to the COVID-19 pandemic and that the Claimant cannot demand salaries
for the months of June and July 2020, as it was not contractually agreed.
25.
In this context the DRC Judge remarked that the Respondent, in its reply to the Claimant’s
default notice, did not deny the Claimant’s entitlement to the salaries for the months of
June and July 2020, it merely indicated that it would apply a discount to the outstanding
salaries and attempted to reach a settlement agreement with the Claimant.
26.
Moreover, the DRC Judge took into account that the Respondent argued that in light of
the COVID-19 pandemic, it experienced financial difficulties and accordingly, could not
comply with its financial obligations towards the Claimant.
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REF FPSD-2418
27.
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.
28.
In this context, the DRC Judge considered that – based on the above set of documents
issued by FIFA - 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.
29.
What is more, the DRC Judge remarked that according to the information available on FIFA
TMS, the Claimant was on loan to the Respondent. In this regard, the DRC Judge
highlighted that generally when a loan agreement is concluded, a player’s original contract
is suspended during the loan period and the player would conclude an employment contract
with the new club, the new club are therefore obliged to comply with the obligations
stipulated in the contract concluded with the player.
30.
As a result of the foregoing, the DRC Judge concluded that the Respondent had to fulfil
the contractually agreed financial obligations as per the contract. As a result, the DRC judge
concluded that arguments of the Respondent cannot be upheld.
31.
Following the aforementioned line of reasoning, the DRC Judge concluded that the
Respondent was in arrears of its financial obligations and should be held accountable for
the non-fulfilment of said financial obligations.
ii. Consequences
32.
Having stated the above, the members of the Chamber concurred that the Respondent
must fulfil its obligations in accordance with the general legal principle of “pacta
sunt servanda”.
33.
Consequently, the Chamber decided that the Respondent is liable to pay to the Claimant
his outstanding remuneration, in the amount of EUR 146,000 net, corresponding to:
(a)
(b)
(c)
(d)
(e)
EUR 16,000 as balance of the salary payment, due on February 2020;
EUR 26,000 as salary payment, due on 31 March 2020;
EUR 26,000 as salary payment, due on 30 April 2020;
EUR 26,000 as salary payment, due on 31 May 2020;
EUR 26,000 as salary payment, due on 30 June 2020; and
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(f)
EUR 26,000 as salary payment, due on 31 July 2020
34.
Furthermore, based on its well-established jurisprudence as well as taking into account the
Claimant’s request, the DRC Judge decided to award 5% interest p.a. on the above
amounts from the respective due dates until the date of effective payment.
35.
In addition, the DRC Judge established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
36.
In continuation, bearing in mind the foregoing considerations, the DRC 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.
37.
The DRC Judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent.
38.
Moreover, the DRC judge referred to art. 12bis par. 6 of the Regulations, which establishes
that a repeated offence will be considered as an aggravating circumstance and lead to a
more severe penalty.
39.
Bearing in mind the above, the deciding body decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
40.
Furthermore, the DRC Judge rejected any claim for legal expenses and procedural
compensation in accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence in this regard.
41.
The DRC Judge concluded his deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
iii. Compliance with monetary decisions
42.
Finally, the DRC Judge referred to par. 1 lit. 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.
43.
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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
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44.
Therefore, bearing in mind the above, the DRC 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. 24bis par. 2, 4, and 7 of the Regulations.
45.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
46.
The DRC 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. 24bis
par. 8 of the Regulations.
d.
Costs
47.
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.
48.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
49.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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IV.
DECISION OF DRC JUDGE
1.
The claim of the Claimant, Oscar Eduardo Estupiñan Vallesilla, is partially accepted.
2.
The Respondent, Denizlispor Kulubu, has to pay to the Claimant, the following amount:
-
EUR 146,000 net as outstanding remuneration, plus 5% interest p.a. as from the
respective due dates until the date of effective payment, as follows:
on the amount of EUR 16,000 as from 1 March 2020;
on the amount of EUR 26,000 as from 1 April 2020;
on the amount of EUR 26,000 as from 1 May 2020;
on the amount of EUR 26,000 as from 1 June 2020;
on the amount of EUR 26,000 as from 1 July 2020; and
on the amount of EUR 26,000 as from 1 August 2020.
3.
A warning is imposed on the Respondent.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the 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 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
8.
This decision is rendered without costs.
For the DRC Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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