DRC Overdue Payables
Texto da decisão
REF. FPSD-12455
Decision of the
Dispute Resolution Chamber
passed on 14 December 2023
regarding an employment-related dispute concerning
the player Cristobal Andres Jorquera Torres
BY:
Lívia SILVA KÄGI (Brazil & Switzerland), Deputy Chairwoman
Michele COLUCCI (Italy), member
Oleg ZADUBROVSKIY (Russia), member
CLAIMANT:
Cristobal Andres Jorquera Torres, Chile
c/o Represented by Jose Aridane Perez Ortega
RESPONDENT:
Bursaspor Kulubu Dernegi, Türkiye
Represented by Merve Kubra Durmaz
pg. 2
REF. FPSD-12455
I. Facts of the case
1.
On 16 July 2015, the Chilean player Cristobal Andres Jorquera Torres (hereinafter: the
Claimant) and the Turkish club Bursaspor Kulübü Dernegi (hereinafter: the Respondent)
concluded an employment contract valid from 20 July 2015 until 31 May 2018.
2.
On 6 August 2018, the Claimant lodged a claim before the FIFA Dispute Resolution Chamber
(“DRC”) against the Respondent for breach of contract and requested from the latter the
payment of EUR 516,846.75 as outstanding remuneration.
3.
On 1 February 2019, the DRC rendered a decision (hereinafter: the DRC Decision) ordering
inter alia the Respondent to pay the Claimant the following amounts:
“(…)
-
EUR 510,000 plus 5% interest p.a. as from 6 August 2018 until the effective date of
payment;
-
TRY 37,500 plus 5% interest p.a. as from 6 August 2018 until the effective date of
payment.
(…)”
4.
On 3 October 2019, the Respondent filed an appeal before the Court of Arbitration for
Sport (“CAS”) challenging the DRC Decision. Such appeal was registered with reference CAS
2019/A/6488.
5.
On 6 December 2019, in view of the Respondent’s late payment of the relevant advance of
costs, the Deputy President of the Appeals Arbitration Division of the CAS rendered a
Termination Order whereby the procedure CAS 2019/A/6488 was terminated and removed
from the CAS roll.
6.
On 18 December 2019, the Claimant communicated his banking coordinates to the
Respondent in order for the latter to proceed to the relevant payment in accordance with
the DRC Decision.
7.
On 26 March 2020, the FIFA general secretariat informed the Respondent that due to the
latter’s failure to comply with the DRC Decision, a registration ban would be imposed on
the Respondent, preventing the latter from registering any players, either nationally or
internationally and effective as from the start of the corresponding next registration
period.
8.
In this context, on 10 August 2021, the Claimant and the Respondent (hereinafter jointly
referred to as: the Parties) concluded a contract (hereinafter: the Settlement Agreement)
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REF. FPSD-12455
whereby the Parties agreed to defer the amounts owed by the Respondent to the Claimant
under the DRC Decision, by means of a new payment plan and, accordingly, the
Respondent would request the registration ban to be lifted.
9.
In accordance with art. 6 of the Settlement Agreement, the Respondent acknowledged a
total debt of EUR 590,455.58 to be paid to the Claimant as per the following schedule:
-
“1st instalment: 140.000,00-Euro (NET) on the signing date of this Settlement Agreement;
2nd instalment: 40.000,00-Euro (NET) on 30th of October 2021
3rd instalment: 40.000,00-Euro (NET) on 30th of November 2021
4th instalment: 40.000,00-Euro (NET) on 30th of December 2021
5th instalment: 40.000,00-Euro (NET) on 30th of January 2022
6th instalment: 40.000,00-Euro (NET) on 28th of February 2022
7th instalment: 250.455,58-Euro (NET) on 30th of September 2022”
10. Furthermore, under art. 9 of the Settlement Agreement, the Parties agreed that:
“In case [the Respondent] fails to pay any of the 2nd, 3rd, 4th, 5th, 6th, 7th 8th instalment
either in full or in part, all the outstanding amounts will become immediately due and payable
including 5% interest p.a. from the dates specified at the relevant award until the date of
effective payment. An additional 5% interest (calculated as stated before) shall apply as
penalty for non-fulfilment of the terms of this settlement”.
11. On 13 August 2021, after being informed by the Claimant that the Respondent had paid
the first instalment under the Settlement Agreement, the FIFA general secretariat sent an
email to the Parties acknowledging the entry into force of the said document and
contextually closing the relevant proceeding against the Respondent.
12. In this respect, the FIFA general secretariat informed the Parties that “any claim resulting
from the breach of the aforementioned settlement agreement signed by the parties will have to
be lodged before the Player’s Status Committee or Dispute Resolution Chamber, as applicable,
or before the competent bodies at national or international level mutually agreed by the
parties”.
13. By correspondence dated 24 September 2023, the Claimant put the Respondent in default
of payment of EUR 450,455.58, granting a deadline of 10 days in order to remedy the
default.
II. Proceedings before FIFA
14. On 31 October 2023, 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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REF. FPSD-12455
15. According to the Claimant, the Respondent failed to comply with the Settlement Agreement
by not paying the second instalment within the relevant due date, i.e., 31 October 2023,
hence pursuant to the acceleration clause contained under art. 9 of the said agreement,
the Respondent would become liable to pay all the remaining sums thereto stipulated.
16. Furthermore, the Claimant demanded FIFA to impose on the Respondent a penalty of 5%
per annum as per art. 9 of the Settlement Agreement, running from the due date specified
in the DRC Decision as well as a further 5% interest p.a. computed as from the due date of
the second instalment.
17. Accordingly, the Claimant presented the following requests for relief:
-
EUR 450,455.58 net as outstanding amount;
-
5% p.a. over the net amount of EUR 450,455.58 as from 6 August 2018 until the date of
effective payment, as contractual penalty;
-
5% p.a. over the net amount of EUR 450,455.58 as from 31 October 2021 until the date
of effective payment, as default interest.
18. In its reply, the Respondent acknowledged its debt toward the Claimant and alleged having
suffered several financial difficulties due to the current financial crisis in Türkiye.
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 31 October 2023 and submitted
for decision on 14 December 2023. Taking into account the wording of art. 34 of the March
2023 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 May 2023 edition), the Dispute Resolution
Chamber is competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Chilean player and a Turkish
club.
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REF. FPSD-12455
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 (May 2023 edition), and
considering that the present claim was lodged on 31 October 2023, the aforementioned
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. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
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 took note of the fact that the Respondent did not dispute the amounts herein
claimed, thus accepting the allegations of the Claimant.
25. In particular, the Chamber observed that by failing to comply in due time with the payment
of the second instalment stipulated under the Settlement Agreement, the Respondent
triggered the relevant acceleration clause under art. 9 of the said document, hence it
became immediately liable for the payment of all the remaining instalments as well as the
relevant default interest.
26. Furthermore, the Chamber noted that pursuant to the aforementioned provision, the
Respondent undertook to pay an additional interest of 5% per annum as contractual
penalty running from the date established in the relevant DRC Decision dated 1 February
2019.
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REF. FPSD-12455
27. For the sake of good order, the Chamber wished to emphasize that the fact that interest
was therefore claimed next to the penalty had no impact on the validity of either. In fact,
from art. 9 of the Settlement Agreement it is evident that both parties agreed on the
application of penalty and default interest cumulatively and nothing prevents an
adjudicatory body from awarding both.
28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts
which are outstanding under the Settlement Agreement, EUR 450,455.58 plus a penalty of
5% p.a. over the said amount running as from 6 August 2018 and a default interest of 5%
p.a. as from 31 October 2021.
ii. Consequences of overdue payables
29. In continuation, 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.
30. To this end, the Chamber confirmed that the Claimant put the Respondent in default of
payment of the amounts sought, which had fallen due more than 30 days before, and
granted the Respondent a 10-day deadline to cure such breach of contract.
31. Accordingly, the Chamber confirmed that the Respondent had delayed a due payment
without a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations was met in the case at hand.
32. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. On account of the above and bearing
in mind that this is the first offense by the Respondent within the last two years, the
Chamber decided to impose a warning on the Respondent in accordance with art. 12bis
par. 4 lit. a) of the Regulations.
33. In this connection, the Chamber highlighted 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
34. 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 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.
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REF. FPSD-12455
35. 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.
36. 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.
37. 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.
38. 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
39. 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.
40. 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.
41. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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REF. FPSD-12455
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Cristobal Andres Jorquera Torres, is accepted.
2.
The Respondent, Bursaspor Kulubu Dernegi, must pay to the Claimant the following
amount(s):
EUR 450,455.58 as outstanding amount plus interest p.a. as follows:
-
5% interest p.a. over the amount 450,455.58 of as from 6 August 2018 until the date
of effective payment;
-
5% interest p.a. over the amount 450,455.58 of as from 31 October 2021 until the
date of effective payment.
3.
A warning is imposed on the Respondent.
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, 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 of the ban shall
be of up to 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.
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-12455
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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