DRC Overdue Payables
Texto da decisão
REF 20-01219
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 10 March 2021
regarding an employment-related dispute concerning the player Adriano Fachini
BY:
Pavel Pivovarov (Russia), DRC Judge
CLAIMANT:
Adriano Fachini, Brazil
Represented by Mr. João Lobão
RESPONDENT:
GiresunSpor Kulubu Dernegi, Turkey
Represented by Mr. Atahan Sevimli
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I.
FACTS OF THE CASE
1.
On 7 July 2019, the Brazilian player, Mr. Adriano Fachini (hereinafter: the player or the
Claimant), and the Turkish club, GiresunSpor Kulubu Dernegi (hereinafter: the club or the
Respondent), signed a federative contract valid as from the date of signature until 31 May
2020.
2.
On 8 July 2019, the same parties also signed a supplementary contract, valid through the
season of 2019/2020 (hereinafter: the employment contract).
3.
In accordance with clause 6.1 of the employment contract, the club undertook to pay the
player the following amounts:
a.
b.
c.
d.
e.
f.
g.
h.
i.
j.
k.
EUR 60,000 on 6 July 2019;
EUR 15,000 on 31 August 2019;
EUR 15,000 on 30 September 2019;
EUR 15,000 on 31 October 2019;
EUR 15,000 on 30 November 2019;
EUR 15,000 on 31 December 2019;
EUR 15,000 on 31 January 2020;
EUR 15,000 on 28 February 2020;
EUR 15,000 on 31 March 2020;
EUR 15,000 on 30 April 2020; and
EUR 15,000 on 31 May 2020.
4.
By the end of the employment contract, the club had still not paid the player part of his
remuneration. Consequently, on 22 May 2020, the parties signed a payment agreement
(hereinafter: the settlement agreement).
5.
Clause 1 of the settlement agreement read that: “the club fully recognizes the expressed
above and ratifies that the proceeding covenants are an integral part of the agreement,
therefore, confirms that did not paid to the player part of the salary of August 2019, the
salary of September 2019, October 2019, November 2019, December 2019, January 2020,
February 2020, March 2020 and April 2020 on an total amount of EUR 125.000,00 (one
hundred and twenty five thousand euros)”.
6.
Clause 2 of the settlement agreement established, inter alia, the following:
“1. The club irrevocably assumes that owes to the player the amount better defined in
clause 1 and recognizes that wishes to pay to the plater part of the outstanding amount,
namely EUR 35,000 (thirty five thousand euros) in the following terms:
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i)
EUR 10,000 (ten thousand euros) payable by cash and that shall be at the player
disposal on the signature of the present agreement (regarding part of August 2019
and part of the salary of September 2019);
ii)
EUR 10,000 (ten thousand euros) that shall be received by the player no later than
30.06.2020 (regarding the remaining of September 2019);
iii)
EUR 15,000 (fifteen thousand euros) that shall be received by the player no later
than 20.07.2020 (regarding October 2019).
2. The club recognizes that the salary of November 2019, December 2019, January 2020,
February 2020, March 2020 and April 2020 remains outstanding and that the payment
dates are the ones better defined in [the employment contract] – has expressed in covenant
c) are already elapsed.
[…]
5. Without prejudice of the no. 3 and 4 above, if the club fails to perform any of the
payments present (namely clause 1, no. 2 and clause 2, no. 2) it irrevocably recognizes that
the player is [entitled] to receive 5% interest per/year as from the agreed dates as presented
in [the employment contract] – better defined in covenant c). The compensation will
become immediately due if and when the club fails to comply with the present agreement
with the need of any formal notice”.
7.
On 16 July 2020, the Claimant put the Respondent in default of payment of EUR 105,000,
corresponding to the salaries from November 2019 to April 2020, and granted the club
with a 10 days’ deadline in order to remedy its default.
II.
PROCEEDINGS BEFORE FIFA
8.
On 28 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the player
9.
In his claim, the player stated that the club acknowledged its default towards him by means
of the settlement agreement, however, it failed to perform the financial duties concerning
to the player’s salaries from November 2019 to April 2020.
10.
Accordingly, the player referred to the default notice sent on 16 July 2020 and informed
that the club had neither proceeded the payment nor provided him any answer whatsoever.
11.
Based on the above, the player requested the payment of EUR 105,000 as outstanding
remuneration, plus interest of 5% p.a. as from the due dates and until the effective
payment.
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b.
Position of the club
12.
In his reply, the club firstly referred to the COVID pandemic and stressed that “even at the
hardest times the Respondent acted with perfect manner against the Claimant and tried to
fulfil its obligations with pure good faith. In this direction, the Respondent signed [the
settlement agreement] on 22.05.2020 just to relief the Claimant. Even so, the Claimant did
not respond to the Respondent’s good faith and clearly caused an abuse of right”.
13.
Furthermore, the club pointed out that it “had made a payment to the Claimant in the
amount of 107.380,00 Euro and 77.000,00 TL (which corresponds to an amount of
11.135,87 Euro with the exchange rates at the date of effective payment) until today. Briefly
the Respondent had paid over 118.515,87 Euro the Claimant for fulfilling its contractual
obligations to the Claimant even at the said difficulties. Also the Respondent had given two
promissory notes at the total amount of 25.000,00 Euro to the Claimant”.
14.
Consequently, the club argued that “the Claimant can only claim 66.484,13 Euro for the
whole football season of 2019/2020” and requested FIFA to “deduct all the payments which
have been submitted to FIFA DRC annexed to this reply brief to deduct all the amounts
states in the promissory notes which have been delivered to the Claimant and to make
deduction in line with the FIFA Covid-19 Regulatory Issues dated 11 June 2020 and dismiss
the claims of the Claimant”.
15.
Finally, the club requested the player’s claim to be dismissed and that “the judicial costs
and the attorney ship fees that the Claimant is faced shall be paid by the Claimant”.
c.
The replica of the player
16.
Subsequently, the player was invited to provide his comments on the alleged payments and
receipts provided by the club.
17.
In this regard, the player submitted, inter alia, that he did not keep any promissory note
issued by the club. On the contrary, the player explained that said notes were aimed to
securitize the payment of the settlement agreement and, hence, were returned to the club
upon receipt of the amounts stipulated in clause 2 (1) of the settlement agreement.
18.
Additionally, the player pointed out that the club acknowledged its default in the total
amount of EUR 91,484.13 and explained that the difference between said amount and the
one charged in his claim (i.e. the EUR 11.135,87 that the club allegedly paid to the player)
corresponded to “match bonuses” and not to salaries, as claimed by the Respondent.
19.
Lastly, the player concluded that the club “is now in a clear bad faith behaviour trying to
convince this chamber that paid more that it assumed to have paid by transvesting the
match payment [in] salary payment” and reiterated his requests for relief.
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III.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC)
JUDGE
a.
Competence and applicable legal framework
20.
First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC
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 28 August 2020 and
submitted for decision on 10 March 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.
21.
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 combination with art. 22 lit. b) of the Regulations
on the Status and Transfer of Players (edition February 2021), the DRC Judge is competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Brazilian player and a Turkish club.
22.
Then, the DRC 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 Regulations on the Status and Transfer of Player (edition February 2021), and
considering that the present claim was lodged on 28 August 2020, the August 2020 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b.
Burden of proof
23.
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 Judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
24.
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.
25.
Merits of the dispute
His competence 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
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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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
26.
The foregoing having been established, the DRC Judge moved to the substance of the
matter, and firstly took note of the fact that the club referred to the COVID-19 pandemic
in order to justify the lack of payment of the player’s remuneration.
27.
Having said this, the DRC Judge highlighted that FIFA issued a set of guidelines, the COVID19 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 clarifications on 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 noted that the club did not file together with its reply any
documentation pertaining to the question of the COVID-19 pandemic. Consequently, the
DRC Judge underlined that the club failed to meet its burden of proof in accordance with
the aforementioned art. 12 par. 3 of the Procedural Rules insofar as the FIFA COVID FAQ,
in its question no. 1, establishes that the Bureau of the FIFA Council did not determine that
the COVID-19 outbreak was a force majeure situation in any specific country or territory, or
that any specific employment or transfer agreement was impacted by the concept of force
majeure; rather, it provides that whether or not a force majeure situation (or its equivalent)
exists in the country or territory is a matter of law and fact, which must be addressed on a
case-by-case basis vis-à-vis the relevant laws that are applicable to any specific employment
or transfer agreement.
29.
Additionally, the DRC Judge wished to outline that he could not uphold the argumentation
of the club since almost the totality of the relevant payment in dispute fell due before the
outbreak of the COVID-19 pandemic. Further, the DRC Judge also stressed that the
payments were renegotiated in the settlement agreement and, even so, a significant part
of the remuneration remained unpaid.
30.
At the same time, the DRC Judge highlighted that the settlement agreement was executed
after the outbreak of the COVID-19 pandemic, and thus he found that the position of the
Respondent could not be upheld.
31.
On account of the aforementioned considerations, the DRC Judge observed that the parties
strongly dispute the quantum due by the club to the player as outstanding remuneration.
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32.
Accordingly, the DRC Judge noted that the club acknowledged its default of EUR
66,484.13, however it argued that it had already paid the amount of EUR 13,515.87 to the
player, as well as it supposedly delivered two promissory notes in the total of EUR 25,000.
33.
In this respect and in light of the documentation brought forward by the parties, the DRC
Judge referred to the principle of the burden of proof and concluded that the club was not
capable of demonstrating that the amounts indicated in its reply were dully delivered to the
player in consideration of his salaries from November 2019 to April 2020.
34.
Having noted the above and due to the lack of evidence capable of rebutting the player’s
allegations, the DRC Judge decided that he could not uphold the club’s requests regarding
the deductions to be applied over the outstanding remuneration as requested by the player.
35.
Therefore, the DRC Judge concluded that, in accordance with the general principle legal of
pacta sunt servanda, the club has to pay to the player the total of EUR 105,000.
36.
Lastly, taking into consideration the player’s request, the DRC Judge decided to award the
player 5% interest p.a. on the amount requested as from one day after the date when they
should have been paid, until the date of effective payment.
ii. Art. 12bis of the Regulations
37.
In continuation, 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.
38.
To this end, the DRC Judge confirmed that the player put the club in default of payment of
the amounts sought, which had fallen due form more than 30 days, and granted the club
with 10 days to cure such breach of contract.
39.
The DRC 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 the club is a repeat offender, the DRC Judge decided to impose a fine on the
Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.
40.
Furthermore, considering the amount due of EUR 105,000, the DRC Judge regarded a fine
amounting to CHF 45,000 as appropriate and hence decided to impose said fine on the
club.
41.
In this connection, the DRC Judge wished to highlight 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
42.
Finally, taking into account the consideration the Regulations, the DRC Judge referred to
par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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 and for the
maximum duration of three entire and consecutive registration periods.
44.
Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, a ban from registering any new players,
either nationally or internationally, for the maximum duration of three entire and
consecutive registration periods shall become effective on the Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
45.
The DRC Judge recalled that the above-mentioned bans will be lifted immediately and prior
to its complete serving upon payment of the due amounts, in accordance with art. 24bis
par. 3 of the Regulations.
46.
Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Adriano Fachini, is accepted.
2.
The Respondent, Giresunspor Kulübü Dernegi, has to pay to the Claimant, the amount of EUR
105,000 as outstanding remuneration plus 5% interest p.a. as follows:
o
o
o
o
o
o
o
On EUR 15,000 as from 1 December 2019 until the date of effective payment;
On EUR 15,000 as from 1 January 2020 until the date of effective payment;
On EUR 15,000 as from 1 February 2020 until the date of effective payment;
On EUR 15,000 as from 1 March 2020 until the date of effective payment;
On EUR 15,000 as from 1 April 2020 until the date of effective payment;
On EUR 15,000 as from 1 May 2020 until the date of effective payment; and
On EUR 15,000 as from 1 June 2020 until the date of effective payment.
3.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
4.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
5.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
6.
The Respondent is ordered to pay a fine in the amount of CHF 45,000. The fine is to be paid
within 30 days of notification of the present decision to FIFA to the following bank account with
reference to case no. 20-01219:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A8.
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7.
In the event that the fine indicated in point 6 above is not paid by the Respondent within the
stated time limit, the present matter shall be submitted to the FIFA Disciplinary Committee for
consideration and a formal decision.
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
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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