DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 3 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
S téphane Burchkalter (France), member
on the claim presented by the player,
Lukas z Gikiew icz, Poland
represented by Mr Georgi Gradev
as Claimant
against the club,
Al Batin FC, Saudi Arabia
represented by Mr Nasr El-din Azzam
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 18 June 2018, the Polish player, Lukasz Gikiewicz (hereinafter: the Claimant)
and the Saudi club, Al Batin FC (hereinafter: the Respondent) signed an
employment contract valid as from 1 July 2018 until 30 June 2019, for a total
remuneration of USD 200,000, consisting of 12 monthly salaries of USD 12,500
each and an “advance” payment in the amount of USD 50,000.
2.
On 12 December 2018, the parties concluded a termination agreement.
3.
The termination agreement stipulated, inter alia, the following: “Article 3: The
[Respondent] undertakes to pay to the [Claimant] net amount of USD 62,500.00
[…] by no later than 31/12/2018. Article 4: Should the [Respondent] fail to pay
the aforementioned net amount to the [Claimant] by no later than 31/12/2018,
then the [Respondent] shall also pay to the [Claimant], on top […] default
interest of 15 % per year on the above specified amount starting as from the
respective date of maturity of the aforementioned net amount until the
respective day of payment. Article 5: Any communication under this Termination
agreement shall only be effective if it is in writing, and sent to the other Party
as follows: a) to the Club - e-mail: [email protected]; b) to the Player - email: [email protected] […]”
4.
On 18 February 2019, Mr Georgi Gradev, allegedly acting on behalf of the
Claimant, put the Respondent in default of payment of USD 62,500,
corresponding to the amount stipulated in the termination agreement, plus
15% interest p.a. as from 1 January 2019 in accordance with art. 4 of the
termination agreement, setting a deadline of 10 days in order for the
Respondent to remedy the default.
5.
On 22 April 2019, the Claimant lodged a claim against the Respondent in front
of FIFA, asking that the Respondent be ordered to pay to him overdue payables
in the amount of USD 62,500, plus 15% interest p.a. as stipulated in the
termination agreement. The Claimant further requested that sporting sanctions
be imposed on the Respondent.
6.
More specifically, the Claimant maintained that the Respondent never replied
to his default notice and that the requested interest at a rate of 15% p.a. was
stipulated in the contract and is not disproportionate in accordance with the
jurisprudence of the Court of Arbitration for Sports (CAS).
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 2 of 8
7.
In reply, the Respondent requested the rejection of the claim and explained that
it “had faced several difficulties due to force majeure which affected his position
in the Saudi premier league as it is susceptible to drop down to the second
division” and that, as a result, it mutually terminated the contract in good faith.
8.
In relation to the default notice, the Respondent considered that it shall be not
taken into account, as it was sent by the Claimant’s alleged legal representative
without providing a valid power of attorney in said letter. Moreover, the
Respondent underlined that said legal representative was not mentioned in the
termination agreement.
9.
Moreover, the Respondent considered that the requested interest of 15% p.a. is
not proportionate in accordance with Swiss law and that interest of 5% p.a. shall
instead be granted.
10.
In addition, the Respondent requested to not be imposed with sporting
sanctions, as “there is only 4 months” of delay in the payment.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Chamber was eager to emphasize that, contrary to the
information contained in FIFA’s letter dated 15 October 2019 by means of which
the parties were informed of the composition of the Chamber, the member
Tomislav Kasalo and the member Jérôme Perlemuter refrained from
participating in the deliberations in the case at hand, due to the fact that the
member Tomislav Kasalo refrained from participating due to certain personal
circumstances and that, in order to comply with the prerequisite of equal
representation of club and player representatives, also the member Jérôme
Perlemuter refrained from participating and thus the Dispute Resolution
Chamber adjudicated the case in presence of three members in accordance with
art. 24 par. 2 of the Regulations.
2.
Its composition having been defined, the Dispute Resolution Chamber
(hereinafter also referred to as Chamber or DRC) analysed whether it was
competent to deal with the matter at hand. In this respect, it took note that the
present matter was submitted to FIFA on 22 April 2019. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 3 of 8
Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable
to the matter at hand (cf. art. 21 of the Procedural Rules).
3.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2019), 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 Polish player and a Saudi club.
4.
Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of
Players (edition 2019), and considering that the present claim was lodged on 22
April 2019, the June 2018 edition of said regulations (hereinafter: Regulations)
is applicable to the matter at hand as to the substance.
5.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned facts
as well as the arguments and documentation on file. However, the DRC
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.
6.
Having said this, the DRC acknowledged that following the conclusion of an
employment contract on 18 June 2018, valid as from 1 July 2018 until 30 June
2019, on 12 December 2018, the Claimant and the Respondent signed a
termination agreement by means of which the Respondent undertook to pay to
the Claimant a total amount of USD 62,500 “by no later than” 31 December
2018.
7.
In addition, the DRC observed that art. 4 of the termination agreement
stipulates that “should the [Respondent] fail to pay the aforementioned net
amount to the [Claimant] by no later than 31/12/2018, then the [Respondent]
shall also pay to the [Claimant], on top […] default interest of 15 % per year”.
8.
Furthermore, the DRC took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue
payables towards him in the total amount of USD 62,500 corresponding to the
amount indicated in the termination agreement. Moreover, the DRC observed
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 4 of 8
that the Claimant requested to be awarded interest at a rate of 15% p.a. on the
said amount.
9.
In this context, the members of the DRC took particular note of the fact that the
Respondent, for its part, did not contest having been addressed with a default
notice, nor did it contest having an outstanding dues to the Claimant, but only
that Mr Georgi Gragev lacked the authority to act as attorney on behalf of the
Claimant. In other words, the Chamber observed that the substance of the claim
remained uncontested.
10.
With regards to Mr Gradev’s alleged lack of empowerment, however, the
members of the DRC observed that the said legal representative is the same one
who lodged the claim at the basis of the present dispute before FIFA on behalf
of the Claimant, authorised to do so through a valid power of attorney.
Therefore, the members of the DRC found no reason to conclude that he was
not acting on behalf of the Claimant when he addressed the Respondent with
a default letter.
11.
In relation to the above, therefore, the DRC considered that, on 18 February
2019, the Claimant put the Respondent in default of payment of the amount of
USD 62,500, setting a time limit of 10 days in order to remedy the default.
12.
Consequently, the DRC concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the
creditor (player or club) must have put the debtor club in default in writing and
have granted a deadline of at least ten days for the debtor club to comply with
its financial obligation(s).
13.
In this respect, the DRC recalled that, in accordance with the termination
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant the amount of USD 62,500, by no later than 31 December 2018.
14.
Taking into account the documentation presented by the Claimant in support
of his petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
15.
On account of the aforementioned considerations, the Chamber established
that the Respondent failed to remit to the Claimant the total amount of USD
62,500, corresponding to the amount indicated in the termination agreement.
16.
In addition, the DRC established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 5 of 8
17.
Consequently, the members of the Chamber decided that, in accordance with
the general legal principle of pacta sunt servanda, the Respondent is liable to
pay to the Claimant overdue payables in the total amount of USD 62,500.
18.
In addition, taking into consideration the Claimant’s request as well as the
interest clause provided for in art. 4 of the termination agreement, the members
of the Chamber decided to award the Claimant 15% interest p.a. on the amount
of USD 62,500 as from 1 January 2019 until the date of effective payment, since
it was contractually agreed and the said percentage does not seem to be
disproportionate.
19.
In continuation, taking into account the consideration under number II./16.
above, 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.
20.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and in the
absence of the circumstance of repeated offence, the DRC decided to impose a
warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
21.
In this connection, the DRC 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.
22.
Furthermore, taking into account the consideration under number II./4. above,
the Chamber referred to par. 1 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.
23.
In this regard, the DRC pointed out 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.
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 6 of 8
24.
Therefore, bearing in mind the above, the DRC decided that, in the event that
the Respondent does not pay the amount due to the Claimant within 45 days as
from the moment in which the Claimant, following the notification of the
present decision, communicates the relevant bank details to the Respondent, 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.
25.
Finally, 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. 24bis par. 3 of the Regulations.
III.
Decis ion of the Dispute Res olution Cham ber
1.
The claim of the Claimant, Lukasz Gikiewicz, is accepted.
2.
The Respondent, Al Batin FC, has to pay to the Claimant the amount of USD
62,500 as overdue payables, plus 15% interest p.a. as from 1 January 2019 until
the date of effective payment.
3.
A warning is imposed on the Respondent.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the postal address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point III./2. above.
5.
The Respondent shall provide evidence of payment of the due amount in
accordance with point III./2. above to FIFA to the e-mail address [email protected],
duly translated into one of the official FIFA languages (English, French, German,
Spanish).
6.
In the event that the amount plus interest due in accordance with point III./2.
above is not paid by the Respondent w ithin 45 day s as from the notification
by the Claimant of the relevant bank details to the Respondent, 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
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 7 of 8
of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
7.
The ban mentioned in point III./6. above will be lifted immediately and prior to
its complete serving, once the due amounts are paid.
8.
In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for
consideration and a formal decision.
*****
Note relating to the m otiv ated decis ion (legal remedy):
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed
against before the Court of Arbitration for Sport (CAS). The statement of appeal must
be sent to the CAS directly within 21 days of receipt of notification of this decision
and shall contain all the elements in accordance with point 2 of the directives issued
by the CAS, a copy of which we enclose hereto. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a
brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf.
point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl: CAS directives
Player Lukasz Gikiewicz, Poland / Club Al Batin FC, Saudi Arabia
Page 8 of 8