Dispute Resolution Chamber
Texto da decisão
REF FPSD-516
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 2 June 2021
regarding an employment-related dispute concerning the player Miroslav Markovic
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Miroslav Markovic, Serbia
Represented by Markéta Vochoska Haindlova
RESPONDENT:
Hassania Agadir, Morocco
Represented by Jorge Ibarrola
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REF FPSD-516
I.
FACTS OF THE CASE
1.
On 16 July 2018, the Claimant and the Respondent entered an Employment Contract for a
fixed period until 30 June 2020 (hereinafter referred to as "the Contract").
2.
On 21 August 2019, the Claimant lodged a claim before the FIFA Dispute Resolution
Chamber ("FIFA DRC”) for outstanding remuneration and breach of contract by the
Respondent under article 17 of the FIFA RSTP.
3.
On 21 February 2020, by decision number 19-01671, the FIFA DRC ordered the Respondent
to pay Moroccan Dinars (MAD) 1,575,000 to the Claimant within 45 days from the
notification of the bank details.
4.
On 16 April 2020, the Respondent filed an appeal before the Court of Arbitration for Sport
("CAS") to dispute the above-mentioned FIFA DRC decision (CAS 2020/A/6957).
5.
On 18 September 2020, the parties entered into a Settlement Agreement and cancelled the
CAS hearing, requesting however CAS to embody the agreed Settlement Agreement in a
Consent Award, preferably before 15 October 2020.
6.
According to the Settlement Agreement, the Respondent undertook to pay the Claimant
the amount of EUR 110,000, by no later than 15 October 2020.
7.
Moreover, in case of delay of more than 10 days in the payment of the amount above
mentioned, the Respondent undertook to pay a penalty of EUR 20,000 (article 1.4 of the
agreement).
8.
The concluded Settlement Agreement was embodied to the Consent Award of CAS of 10
November 2020 (notified to the parties on 11 November 2020).
9.
On 9 November 2020 the Respondent paid the Claimant the amount of EUR 110,000 as
stipulated in the Settlement Agreement.
10.
On 18 November 2020, the Claimant sent a reminder to the Respondent to request the
payment of the penalty fee of EUR 20,000 as the Respondent had failed to pay within the
10-days deadline provided for by the Settlement Agreement.
11.
On the same date, the Respondent replied to the Claimant arguing that “the issuance of
the CAS Consent Award was decisive for the Club's duty to pay the amount provided in the
Settlement Agreement and that the issuance of the CAS Consent Award was necessary for
the Club to execute its duty to pay the settled amount.”
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REF FPSD-516
II.
PROCEEDINGS BEFORE FIFA
12.
On 17 December 2020, the Claimant filed the claim at hand before FIFA. A brief summary
of the position of the parties is detailed in continuation.
a.
The claim of the Claimant
13.
In its claim dated 17 December 2020, the Claimant requested the payment by the
Respondent of the amount of EUR 20,000 net plus interest at 5% p.a. for the period from
25th October 2020 until the date of the effective payment as overdue payables.
14.
In this respect, the Claimant observed that “the Respondent did not have the obligation to
wait on the Consent Award by CAS to make the settlement payment to the Player. The
Settlement Agreement was concluded on 18th September 2020 between the Club and the
Player and was consequently effective from this date. The Respondent was granted the
period from 18th September 2020 until 15th October 2020, i.e. 28 days, to make the
payment and, consequently, any payment received after this date triggered article 1.4 of
the Settlement Agreement meaning that an extra payment of EUR 20,000 is due within 10
days from the expiry of the deadline for the payment of the settled amount, as a penalty
for late payment.”
15.
Furthermore, the Claimant is of the opinion that the lack of payment by the Respondent
constitutes a breach of article 12bis of the FIFA RSTP and with the notice sent by the
Claimant to the Respondent on 18 November 2020, the Claimant fully complied with article
12bis point 3 of the FIFA RSTP, giving the Respondent an additional payment period of 10
days to pay the overdue penalty.
b.
Position of the Respondent
16.
In its reply to the claim, the Respondent firstly stated that the payment by HUSA of the
amount agreed upon in the settlement agreement was delayed for circumstances not
attributable to the Respondent.
17.
In support of the above, the Respondent produced copy of several documents related to
the bureaucratic steps which had to be followed in order to proceed with the payment of
the due amount to the Claimant.
18.
Inter alia, the Respondent explained that:
“…in application of the Moroccan international bank-transfer regulations, we were obliged
to respect the procedure and request an authorization from the Office des Changes.
Something that we started well before the deadline and dated 29 September 2020.
As of 15 October 2020, Club HUSA received the authorization to transfer money. (see copy
of the currency-exchange authorization)
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REF FPSD-516
Payment of the agreed amount was made on 10 November 2020, although Club HUSA
deposited the transfer request with the bank on 14 October 2020. A delay still due to the
procedures followed by the banking services in the matter.”
19.
Considering the above, and in conjunction with the force majeure clause inserted in the
same article 1.4 of the Settlement Agreement, the Respondent is of the opinion that it
would be exempted from the payment of the penalty fee claimed by the Claimant as in
casu the delay was clearly not attributable to the Respondent’s fault nor under its control.
20.
Furthermore, the Respondent observed that it paid the amount of EUR 110,000 provided
in the Settlement Agreement on 9 November 2020, while the CAS Award was served on
the parties on 10 November 2020, namely, 24 hours after the due date of the payment by
the Respondent to the Claimant.
21.
Therefore, according to the Respondent, the settlement agreement embodied in the CAS
award was not yet enforceable when the payment took place, 24 hours before the
notification of the CAS award.
22.
Accordingly, the Respondent is of the opinion that the penalty clause invoked by the
Claimant is not applicable.
23.
In support of the above, the Respondent submitted the copy of a letter sent by the Claimant
to CAS on 9 October 2020, which reads as follows:
“I would kindly like to inform you that to this day no CAS award has been received by the
Respondent. However, the settlement amount should be duly paid by the Appellant to the
Respond at the latest on 15 October 2020.
ln consideration of the above, the Respondent respectfully requests the CAS to issue the
award regarding this Settlement and with the Settlement Agreement embodied, preferably
before the end of the payment deadline which is, as mentioned above, 15 October 2020.
If this is not possible, the Respondent would appreciate the issuing of the award at the
earliest convenience of the CAS as to have any means towards the Appellant to claim the
overdue settlement amount.”
24.
From the content of the above letter, the Respondent is of the opinion that according to
the same Claimant the payment of the amount agreed in the settlement agreement would
only be enforceable upon receipt of the CAS consent award.
25.
Therefore, such payment made before the notification the CAS consent award may not be
considered late and, accordingly, the penalty would not be applicable.
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III.
CONSIDERATIONS OF THE DRC JUDGE
a.
Competence and applicable legal framework
26.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 18 December 2020 and submitted
for decision on 2 June 2021. Taking into account the wording of art. 21 of the 2021 edition
of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
27.
Subsequently, the DRC judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. a) and b) of the
Regulations on the Status and Transfer of Players (edition February 2021), the DRC judge is
competent to deal with the matter at stake, which concerns an employment-related dispute
with an international dimension between a Serbian player and a Moroccan club.
28.
Subsequently, the DRC judge 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 Player (edition February 2021), and
considering that the present claim was lodged on 18 December 2020, the October 2020
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
Burden of proof
29.
The DRC judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 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 DRC judge stressed
the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider
evidence not filed by the parties.
30.
In this respect, the DRC judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
31.
Merits of the dispute
The competence of the DRC judge and the applicable regulations having been established,
the DRC judge entered into the merits of the dispute. In this respect, the DRC judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC judge emphasised that in the following
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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
32.
The foregoing having been established, the DRC judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether or not a penalty
in the amount of EUR 20,000 has fallen due, because of the late payment of an amount of
EUR 110,000, which the parties had agreed upon in a settlement agreement.
33.
In this context, the DRC judge acknowledged that it its task was to determine whether or
not indeed the amount of EUR 110,000 was paid late, and if so, whether or not the penalty
agreed upon in the settlement agreement was triggered.
34.
First of all, the DRC judge noted that, although the parties had agreed in a settlement
agreement dated 18 September 2020 upon the payment of an amount of EUR 110,000,
the award rendered by the CAS, embodying the settlement agreement, was issued only on
18 November 2020. The DRC judge was however of the opinion that the settlement
agreement shall be considered valid and binding as of the date of signature by the parties
(i.e. 18 September 2020), and that the award rendered by CAS no influence on the validity
per se of the settlement agreement.
35.
In view of the above, and notwithstanding the aforementioned CAS Award, the DRC judge
thus concluded that based on the wording and ratio of the settlement agreement, the
Respondent should have complied with its financial obligations towards the Claimant, and
made sure that the amount of EUR 110,000 was received by him no later than 15 October
2020.
36.
From the information on file, the DRC judge however noted that the Claimant had only
received the amount of EUR 110,000 on 9 November 2020. By failing to timely ay the
aforementioned amount, the DRC judge concluded that the Respondent became subject to
the payment of the penalty clause foreseen under article 1.4 of the settlement agreement.
ii. Consequences
37.
Having stated the above, the members of the DRC judge turned his attention to the
question of the consequences of such unjustified breach of the settlement agreement by
the Respondent.
38.
In view of the clear and unambiguous wording of art. 1.4 of the settlement agreement, the
DRC judge decided that the Respondent is liable to pay a penalty in the amount of EUR
20,000 to the Claimant.
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iii. Compliance with monetary decisions
39.
Finally, taking into account the consideration under number 38. above, the DRC judge
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.
40.
In this regard, the DRC 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 and for the
maximum duration of three entire and consecutive registration periods.
41.
Therefore, bearing in mind the above, the DRC judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, communicates the relevant bank details to the Respondent,
provided that the decision is final and binding, 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.
42.
The DRC judge recalled that the above-mentioned bans 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.
43.
Lastly, the DRC judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF FPSD-516
IV. DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Miroslav Markovic, is accepted.
2.
The Respondent, Hassania Agadir, has to pay to the Claimant, the following amount:
EUR 20,000 as penalty fee.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
5.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
6.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. 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 of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7. This decision is rendered without costs.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
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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