DRC Overdue Payables
Texto da decisão
REF. FPSD-13742
Decision of the
Dispute Resolution Chamber
passed on 2 May 2024
regarding an employment-related dispute concerning
the player Brent Lepistu
BY:
Angela COLLINS (Australia), member
CLAIMANT:
Brent Lepistu, Estonia
Represented by Ruiz-Huerta & Crespo
RESPONDENT:
CS Mioveni, Romania
Represented by Silviu Constantin Diaconu
pg. 2
REF. FPSD-13742
I. Facts of the case
1.
On 17 January 2023, the Estonian player Brent Lepistu (hereinafter the Claimant or the
player) and the Romanian club CS Mioveni concluded employment agreement (hereinafter
the Employment Agreement) valid as from 17 January 2023 until 17 June 2023.
2.
In accordance with the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) agreed upon the following remuneration:
“Starting with the date 19.05.2023, the contract no 08/17.01.2023 is finished. Mr. Lepistu
Brent has to receive the following amounts, 115 000 lei net (march, april, may salary):
- 6 500 Euro net (32 500 lei net installation bonus) until the date of 20.06.2023
- 5 550 Euro net (27 750 lei net Mach salary) until the date of 30.06.2023
- 5 550 Euro net (27 750 lei net – April salary) until the date of 30.07.2023
- 5 550 Euro net (27 750 lei net – May salary) until the date of 30.08.2023”
3.
In accordance with Clause XI of the Employment Agreement, the Parties agreed upon the
following jurisdiction clause:
4.
The Claimant recognized having received a total amount of EUR 5,400 out of the abovementioned debt.
5.
On 23 January 2024, the Respondent submitted “a request to open the preventive concordat
procedure at the Romanian Argeș Specialized Court, the request being motivated mainly by the
temporary financial difficulty regarding the payment of the outstanding amounts from the time
of filing the request.”
6.
On 24 January 2024, the Claimant sent a letter to the Respondent, requested the amount
of EUR 23,150, corresponding to outstanding amounts. The Claimant granted the
Respondent 10 days to comply with its obligations, however, to no avail.
7.
On 12 February 2024, the Romanian Argeș Specialized Court ordered the admission of the
application for the opening of the preventive concordat procedure” and a special
administrator was appointed.
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REF. FPSD-13742
II. Proceedings before FIFA
8.
On 20 February 2024, 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
9.
The requests for relief of the Claimant were the following:
“1. To accept this claim;
2. To order the Respondent to pay the Claimant the amount of the total amount of,
EUR 17,750 (seventeen thousand seven hundred and fifty euros) based on the express written
Agreement between the parties.
3. To order the Respondent to pay the Claimant the default interest at a rate of 5% per annum
of the overdue amounts as of the date of default until the full payment.
4. Any other relief the FIFA Football Tribunal may deem necessary.”
10. The Claimant based its claim on the legal principle pacta sunt servanda.
b. Position of the Respondent
11. In reply to the claim, the Respondent argued that FIFA lacks jurisdiction because of
(i) “a special procedure of insolvency”.
12. In this regard, the Respondent added that it is his “intention is to pay all outstanding debts,
including the one requested by the claimant, but at this moment the preventive concordat
procedure must be followed only in the Romanian Specialized Court” otherwise it “would
directly enter into bankruptcy”.
13. The Respondent was equally of the opinion that the Claimant has “to actively participate in
the special procedure of the preventive concordat, precisely so that there is a real possibility of
collecting the amounts required.”
14. As a result of the above, the Respondent argued “that there cannot exist two parallel
procedures for capitalizing the claim by the Player, which is why we consider the lack of
jurisdiction of the FIFA Tribunal to settle this dispute. The deadline set by the court for making a
decision regarding the approval of the restructuring plan is on 12.06.2024.”
15. The Respondent finally added that, in any event, based on the (ii) jurisdiction clause in the
Employment Agreement, FIFA should not entertain the matter.
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REF. FPSD-13742
c. Replica
16. In the second round of submissions the Claimant rejected that the RFF committees would
be competent by the choice of law being the FIFA Regulations as well as highlighting that
“burden of proof to demonstrated that the RFF has established an NDRC duly independent and
impartial rests on the Respondent”, the latter failing to do so in his submission.
17. The Claimant furthermore argued that “the Club’s attempts to claim there is an alleged
procedure of insolvency is deprived of any sense, as according to the law no. 85/2014 supposedly
applicable (quod non) there is no any restructuring plan that has been prepared and even more,
the alleged proof of this procedure being really open (Annex 3 filed by the Respondent) is not
even translated.”
18. The Claimant concluded that the “Club is only aiming at delaying this procedure” and insisted
on its claim.
d. Duplica
19. In its reply, the Respondent reiterated that “Club’s intention is to pay all outstanding debts,
including the one requested by the player, but at this moment the preventive concordat
procedure must be followed only in the Romanian Specialized Court”, pointing out to its Exhibit
3 of the reply to the claim.
20. Based on the above, the Respondent rejected the jurisdiction of FIFA and added that there
is “no legal way to [recover Claimant’s full amount] without the approval of the special
administrator of the club form the insolvency procedure and, at this moment, all the creditors
form the insolvency procedure are treated equally (their outstanding remunerations are going
to be paid in instalments, not at once).”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
21. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, it took note that the present matter was presented to FIFA on
20 February 2024 and submitted for decision on 2 May 2024. 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.
22. 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
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REF. FPSD-13742
Regulations on the Status and Transfer of Players May 2023 edition), the Single Judge is, in
principle, competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between an Estonian player and a
Romanian club.
23. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the national committees of the Romanian Football Federation
(FRF) in accordance with Clause XI of the Employment Agreement.
24. The Single Judge also noted that the Claimant insisted on the competence of FIFA to
adjudicate the present claim, sustaining that the FRF committees cannot be competent by
the choice of law (i.e. FIFA Regulations) as well as highlighting that “burden of proof to
demonstrated that the RFF has established an NDRC duly independent and impartial rests on
the Respondent”, the latter failing to do so in his submission.
25. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations on the Status and Transfer of Players, FIFA is, in principle,
competent to hear an employment-related dispute between a club and a player of an
international dimension. Nevertheless, the parties may explicitly opt in writing for such
dispute to be decided by an independent arbitration tribunal that has been established at
national level within the framework of the association and/or a collective bargaining
agreement. Any such arbitration clause must be included either directly in the contract or
in a collective bargaining agreement applicable on the parties. The independent national
arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs. Equally, the Single Judge referred to the principles
contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations,
which came into force on 1 January 2008.
26. In this context, the Single Judge pointed out that she should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the relevant FRF committees.
27. In this respect, the Single Judge referred to Clause XI of the Employment Agreement. After
analysing the wording of the jurisdiction clause, the Single Judge concluded that such
clause did not clearly and exclusively establish the competence of one relevant body, in
accordance with art. 22 par. 1 lit. b) of the aforementioned Regulations.
28. As a consequence, the Single Judge was of the opinion that the first pre-requisite for
establishing the competence of an NDRC was not met, and therefore, without the need to
enter the analysis of any further requirement, she established that the Respondent’s
objection to the competence of FIFA to deal with the present matter has to be rejected and
that the Single Judge of the Dispute Resolution Chamber has jurisdiction, on the basis of
art. 22 par. 1 lit. b) of the Regulations, to consider the present matter as to the substance.
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REF. FPSD-13742
29. At this point, the Single Judge noted that the Respondent further challenged the
competence of FIFA to hear the dispute at stake, as it is allegedly affected by “a special
procedure of insolvency” in Romania. In this respect, the Single Judge pointed out that the
Claimant did not actively participate in the proceedings (preventive concordat) in Romania
and, consequently, there is no issue with litis pendens in the current matter and the claim
is admissible.
30. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (February 2024 edition)
and considering that the present claim was lodged on 20 February 2024, the February 2024
edition of said regulations (hereinafter the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
31. 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 she 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
32. Her 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 she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
33. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note that this is a claim of a player against a club concerning outstanding
amounts.
34. Thereafter, the Single Judge recalled that it remained uncontested by the Respondent that
the payments remained outstanding. Nonetheless, the Single Judge acknowledged the
argumentation of the Respondent concerning its inability to pay due to the on-going
insolvency proceedings.
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REF. FPSD-13742
35. At this point, the Single Judge recalled the longstanding jurisprudence of FIFA as well as the
CAS, establishing that insolvency proceedings do not affect procedures in front of the FIFA
judicial bodies as long as the relevant club remains affiliated to its association.
36. Taking into account that the Respondent actively participates in the competition and is
currently affiliated to the FRF, the Single Judge rejected the arguments of the Respondent
and decided to award the Claimant the outstanding amounts as per his request.
ii. Consequences
37. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts
claimed as outstanding under the contract, in total EUR 17,750, as detailed above.
38. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Single Judge in this regard, the latter decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amounts as follows:
−
−
−
−
EUR 1,100 as outstanding remuneration plus 5% interest per annum as from
21 June 2023 until the date of effective payment;
EUR 5,550 as outstanding remuneration plus 5% interest per annum as from
1 July 2023 until the date of effective payment;
EUR 5,550 as outstanding remuneration plus 5% interest per annum as from
31 July 2023 until the date of effective payment.
EUR 5,550 as outstanding remuneration plus 5% interest per annum as from
1 September 2023 until the date of effective payment.
iii. Article 12bis of the Regulations
39. In continuation, 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.
40. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
41. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
42. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the Club. On account of the above and bearing
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REF. FPSD-13742
in mind that this is the first offense by the club within the last two years, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
43. In this connection, the Single Judge 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.
iv. Compliance with monetary decisions
44. 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.
45. 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.
46. Notwithstanding the above, the Single Judge observed that the arguments put forward by
the Respondent could justify the non-application of art. 24 of the Regulations due to the
alleged insolvency proceedings (cf. art. 24 par. 3 lit. b) of the Regulations). After a due
analysis of the evidence on file, the Single Judge decided that she unable to establish if the
“preventive concordat” equals insolvency proceeding and, consequently, concluded that
art. 24 of the Regulations indeed applies in this matter.
47. 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
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.
48. 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.
49. 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.
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REF. FPSD-13742
d. Costs
50. 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, he decided that no procedural costs were to be imposed on
the parties.
51. 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.
52. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 10
REF. FPSD-13742
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the Claimant, Brent Lepistu.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, CS Mioveni, must pay to the Claimant the following amount(s):
- EUR 1,100 as outstanding remuneration plus 5% interest per annum as from
21 June 2023 until the date of effective payment;
- EUR 5,550 as outstanding remuneration plus 5% interest per annum as from
1 July 2023 until the date of effective payment;
- EUR 5,550 as outstanding remuneration plus 5% interest per annum as from
31 July 2023 until the date of effective payment.
- EUR 5,550 as outstanding remuneration plus 5% interest per annum as from
1 September 2023 until the date of effective payment.
4.
Any further claims of the Claimant are rejected.
5.
A warning is imposed on the Respondent.
6.
Full payment (including all applicable interest) shall be made to the bank account indicated
in the enclosed Bank Account Registration Form.
7.
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.
8.
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.
9.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF. FPSD-13742
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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pg. 12