DRC Overdue Payables
Texto da decisão
REF FPSD-4319
Decision of the
Dispute Resolution Chamber
Passed on 8 March 2022
regarding an employment-related dispute concerning the player Francisco
Javier Garcia Fernandez
BY:
Alejandro Atilio Taraborrelli (Argentina / Italy)
CLAIMANT:
Francisco Javier Garcia Fernandez, Spain
Represented by Iñigo de Lacalle Baigorri & Álvaro Martínez San
Segundo
RESPONDENT:
Boavista FC, Portugal
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REF FPSD-4319
I.
Facts of the case
1.
On 18 August 2020, the Spanish player, Francisco Javier Garcia Fernandez (hereinafter: the
Claimant), and the Portuguese club, Boavista (hereinafter: the Respondent) signed an
employment contract valid as from 18 August 2020 until 30 June 2023.
2.
Pursuant to clause 3 of the contract, the Respondent, inter alia, undertook to pay to the
Claimant the following remuneration:
“1.BOAVISTA SAD agrees to pay the PLAYER the annual net remuneration of 350.000,00
euros.
2.The value of the season will be paid during 10 (ten) monthly instalments, to be paid until
the 5th day of each month, starting on September 5th, 2020 and ending on June 5th,
2023.
3.Holiday and Christmas bonus are already included in these instalments, and the respective
proportional amounts shall be included in each monthly payment.
4. The PLAYER has the right to receive a signature bonus of 300.000,00 €, net to be paid in
two instalments of 150.000,00 €, the first due on August 28th, 2020 and the second due
on January 31st, 2021.”
3.
According to the Claimant, the Respondent failed to pay the amount of EUR 150,000 which
was due on 31 January 2021 corresponding to the second instalment regarding the signing
bonus.
4.
On 2 November 2021, the Claimant sent a default notice to the Respondent requesting
payment of the aforesaid amount granting it a deadline of ten (10) days to comply, however
to no avail.
II. Proceedings before FIFA
5.
On 17 November 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
6.
According to the Claimant the Respondent has failed to comply with its payment obligation
as per clause 3 of the contract, accordingly “breaching the legal principle of pacta sunt
servanda and violating Article 12 bis of the FIFA Regulations.”
7. The requests for relief of the Claimant, were that the Respondent
(a)
pay the amount of EUR 150,000 net, plus a (5%) interest p.a. on said amount calculated
from 1 February 2021 until the effective date of payment;
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(b)
(c)
be sanctioned in accordance with art. 12bis; and
pay the legal costs and all other expenses of these proceedings.
b. Position of the Respondent
8. Despite being invited to do so, the Respondent failed to reply.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Single Judge)
analysed whether it was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 17 November 2021 and submitted for
decision on 8 March 2022. 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.
10. 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 Regulations on
the Status and Transfer of Players (March 2022 edition), the Single Judge is competent to
deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Spanish player and a Portuguese club.
11. 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 Regulations on the Status and Transfer of Players (March 2022 edition), and
considering that the present claim was lodged on 17 November 2021, the August 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
12. 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).
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c. Merits of the dispute
13. His 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 it
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
14. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the Claimant indicted that he is entitled to payment of
certain financial obligations by the Respondent as per the contract, namely a sign-on bonus
as detailed in clause 3 par. 4 of the contract.
15. In this context, the Single Judge acknowledged that his 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.
16. The Single Judge noted that in the case at hand that – after having been provided with the
claim of the Claimant - the Respondent failed to present its response, in spite of having been
invited to do so. By not presenting its position to the claim, the Single Judge was of the
opinion that the Respondent renounced its right of defence.
17. Taking into account the documentation presented by the Claimant, the Single Judge
concluded that the Claimant had substantiated its claim pertaining to his outstanding
remuneration with sufficient documentary evidence.
18. 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 amount as per clause 3 par. 4
of the contract.
ii. Consequences
19. Having stated the above, as a consequence, and in accordance with the general legal principle
of pacta sunt servanda, the Single Judge held that the Respondent is liable to pay to the
Claimant, the total amount of EUR 150,000, corresponding to the second instalment of the
signing bonus.
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20. Lastly, taking into consideration the Claimant’s request, the Single Judge decided to award
the Claimant interest on the amount of EUR 150,000, at the rate of 5% p.a. as of 1 February
2021 until the date of effective payment.
21. In addition, the Single Judge established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
22. In continuation, bearing in mind the foregoing considerations, 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.
23. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. In this context, the Single
Judge highlighted that, over the past 2 years under case ref. nos. 21-00077; FPSD-2180 and
FP2283, the Respondent had already been found to have delayed a due payment for more
than 30 days without a prima facie contractual basis.
24. Moreover, the Single 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.
25. Bearing in mind the above, the deciding body decided to impose a fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of the above and
taking into consideration the total amount of overdue payables due, the Single Judge
regarded a fine amounting to USD 22,500 as appropriate and hence decided to impose said
fine on the Respondent.
iii. Compliance with monetary decisions
26. 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.
27. 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.
28. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must
pay the full amount due (including all applicable interest) to the Claimant within 45 days of
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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.
29. 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.
30. 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
31. 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.
32. 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.
33. Lastly, the Single Judge 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, Francisco Javier Garcia Fernandez , is accepted.
2.
The Respondent, Boavista FC, has to pay to the Claimant, the amount of EUR 150,000 as
outstanding amount plus 5% interest p.a. as from 1 February 2021 until the date of effective
payment.
3.
A fine in the amount of USD 22,500 is imposed on the Respondent.
4.
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:
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.
5. 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.
6. 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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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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