DRC Overdue Payables
Texto da decisão
REF FPSD-3990
Decision of the
Dispute Resolution Chamber
passed on 13 January 2022
regarding an employment-related dispute concerning the player Sebastian
Giovinco
BY:
DE WEGER Frans, (The Netherlands), Chairperson
GAUCI Sihon (Malta), member
VAURASI Laurel (Fiji), member
CLAIMANT:
Sebastian Giovinco, Italy
Represented by Andrea Cattoli
RESPONDENT:
Al Hilal SFC, Saudi Arabia
Represented by Marcos Motta & Stefano Malvestio
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I.
Facts of the case
1.
On 29 January 2019, the Italian player Sebastian Giovinco (hereinafter: the Claimant) and the
Saudi club Al Hilal SFC (hereinafter: the Respondent) concluded an employment contract valid
until 31 July 2022.
2.
On 19 August 2021, the parties signed a settlement agreement (hereinafter: the Agreement)
concluding its employment relationship.
3.
Clause 3 of the Agreement reads inter alia as follows:
“the Club shall pay the Second Party a total net amount of USD 7,000,000 for mutually
terminating the employment contract. payable as the following:
a. A net amount of USD 525,000 corresponding to the due unpaid salary of July 2021,
payable within seven (7) days of signing this termination agreement (i.e., no later than
26 August 2021);
b. A net amount of USD 321,775 corresponding to the due unpaid salary of nineteen (19)
days of August 2021, payable within seven (7) days of signing this termination
agreement (i.e., no later than 26 August 2021); and,
c. A net amount of USD 6,153,225 corresponding to a fixed and agreed compensation for
mutually terminating the employment contact, payable with in seven (7) days of signing
this termination agreement (i.e., no later than 26 August 2021).”
4.
Clause 5 of the Agreement reads inter alia as follows:
“This Agreement shall supersede the Employment Contract, annex(s). and any other
agreements and/or commitments signed before the date of this Agreement”.
5.
Between 26 August 2021 and 22 September 2021, the Claimant sent several email
correspondence requesting the payment of the amounts due.
6.
On 31 August 2021, the Respondent paid the amount of USD 1,500,000 to the Claimant.
7.
On 9 September 2021, the Respondent paid the amount of USD 1,000,000 to the Claimant.
8.
On 26 September 2021, the Claimant sent a default notice to the Respondent granting a
deadline of 10 days to comply, however to no avail.
II. Proceedings before FIFA
9.
On 14 October 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
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a. Position of the Claimant
10. According to the Claimant:
a. the Respondent did not fully pay the amounts that were due under the Agreement;
b. the Respondent executed partially the Agreement, admitting per facta concludentia that
the Claimant is fully entitled to receive the amounts herein agreed;
c. he had sent reminders in order to receive the balance of the payment but there was no
answer from the Respondent whom never disputed the validity and effectiveness of the
Termination Agreement;
d. there is no legal basis justifying such delay in the payment by the Respondent, therefore
the Respondent have delayed a due payment for more than 30 (thirty) days without a
prima facie contractual basis
11. The Claimant requests for relief are the following:
a) to recognize that Al Hilal Saudi Club has delayed the payments of amounts due to the
Player for more than 30 (thirty) days without a prima facie contractual basis, applying
art. 12 bis FIFA RSTP;
b) to condemn Al Hilal Saudi Club to pay the Player USD 4.500.000 net plus 5% interests
p.a. since 27th August 2021 until the day of the effective payment;
c)
to impose on Al Hilal Saudi Club disciplinary sanctions applying art. 12 bis point 4 FIFA
RSTP;
d) to condemn Al Hilal Saudi Club to pay all the proceedings costs and legal fees.
b. Position of the Respondent
12. The Respondent filed an answer on the following terms.
13. The Respondent states that in the default notice of 26 September 2021, the Claimant
provided a different bank account than the one included in the Agreement and “fearing that
something might go wrong, the Respondent decided to withhold the payment of any
amounts to the Claimant until the latter clarified which account was indeed correct”.
14. The Respondent “does not deny having to pay the remain amounts stipulated in the
Termination Agreement, no sanctions may be imposed against the Respondent”.
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15. The Respondent further states that “the Claimant pressed the Respondent to accept to oblige
to pay to the Claimant an extremely high amount, which was left with no other option than
to yield to the Player’s pressure”.
16. The Respondent argues that adding up the salaries between July 2021 and July 2022, the
Claimant was entitled to a total amount of 6,300,000, an amount lower than the amount
agreed under the Termination Agreement, i.e., USD 7,000,000
17. The Respondent submits that it shall only partially honour the Agreement, i.e., it shall only
pay to the Player the maximum amount of USD 6,300,000.
18. The Respondent’s requests for relief are the following:
a) Reduce the amount to be paid by the Respondent to the Claimant as remuneration to a
maximum of USD 3,800,000;
b) Dismiss the Player’s claim that the Respondent has overdue payables in the sense of
article 12bis of the FIFA RSTP or, subsidiarily, declare that the Respondent shall only be
subject to a warning; and
c) In any case, order the Player to bear all administrative, procedural costs and expenses
related to the present claim (if any).
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC)
analysed whether it was competent to deal with the case at hand. In this respect, it took note
that the present matter was presented to FIFA on 14 October 2021 and submitted for decision
on 13 January 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.
20. Subsequently, the members of the Chamber 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 (August 2021 edition), the Dispute
Resolution Chamber 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
Saudi club.
21. Subsequently, 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 2 of the Regulations on the Status and Transfer of Players (August 2021 edition) and
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considering that the present claim was lodged on 14 October 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
22. The Chamber 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.
c. Merits of the dispute
23. Its competence and the applicable regulations having been established, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
the Chamber 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
24. The foregoing having been established, the Chamber moved to the substance of the matter,
and acknowledged that it its task was to determine if the Claimant was entitled to the
amounts claimed.
25. The Chamber observed that in accordance with the Agreement, the Respondent was obliged
to pay the Claimant the total amount of USD 7,000,000 in several instalments.
26. Furthermore, the Chamber noted that at the time of the claim, the Respondent had paid
solely the amount of USD 2,500,000 to the Claimant. Moreover, the Chamber concluded
that the Respondent had not provided any valid justification for the non-payment of the
amounts that were outstanding, which constitutes a breach of the Agreement by the
Respondent.
27. Furthermore, the DRC could observe that the Claimant put the Respondent in default for the
due amount, granting a deadline of 10 days to comply, however to no avail.
28. On account of the aforementioned, the Chamber established that the Respondent, without
a prima facie contractual basis or any valid reason, breached the terms of the Agreement as
it failed to remit to the Claimant the total amount of USD 4,500,000.
29. The Chamber determined that in accordance with the general legal principle of pacta sunt
servanda, the Respondent has to pay the amount of USD 4,500,000 as outstanding amount
to the Claimant.
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30. Furthermore, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Chamber decided to award the Claimant interest
on said compensation at the rate of 5% p.a. as of the date each instalment fell due until the
date of effective payment.
ii. Consequences under art. 12bis of the Regulations
31. Having stated the above, the members of the Chamber turned their attention to the question
of the consequences of such unjustified breach of contract committed by the Respondent.
32. The Chamber acknowledged that the Claimant put the Respondent in default for the due
amount, granting a deadline of 10 days to comply, to no avail. Hence, it confirmed that the
requisites for the application of the consequences of article 12bis of the Regulations had been
duly met. To this end, 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.
33. Consequently, the Chamber 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).
34. On account of the aforementioned considerations and bearing in mind that that the
Respondent failed to pay the amount due to the Claimant, the Chamber established that the
Respondent had delayed a due payment for more than 30 days without a prima facie
contractual basis.
35. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and considering that the
Respondent has committed another breach of the cited provision in the last 2 years, the
Chamber decided to impose a reprimand on the Respondent in accordance with art. 12bis
par. 4 lit. a) of the Regulations.
36. In this respect, the Chamber wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
37. Finally, taking into account the applicable Regulations, the Chamber referred to art. 24 par.
1 and 2 of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding
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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.
38. In this regard, the DRC 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.
39. Therefore, bearing in mind the above, the DRC 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. 24 par. 2, 4, and 7 of the Regulations.
40. 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.
41. 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. 24 par. 8 of the
Regulations.
d. Costs
42. The Chamber 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 Chamber decided that no procedural costs were to
be imposed on the parties.
43. Likewise and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
44. Lastly, the DRC 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, Sebastian Giovinco, is partially accepted.
2.
The Respondent, Al Hilal SFC, has to pay to the Claimant, the following amount(s):
- USD 4,500,000 as outstanding amount plus 5% interest p.a. as from 27 August 2021 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
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 the ban shall
be of up to three entire and consecutive registration periods.
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.
6.
The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24 par. 7 and 8 and art. 25 of the Regulations on the Status and Transfer of Players.
7.
This decision is rendered without costs.
8.
A reprimand is imposed on the Respondent.
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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