DRC Overdue Payables
Texto da decisão
REF FPSD-7402
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player
Flavio Medeiros da Silva
BY:
Mr Jon Newman (USA)
CLAIMANT:
Flavio Medeiros da Silva, Brazil
Represented by Messrs Felipe de Macedo, João Vicente Feijó Gazolla,
Rafael Cobra De Toledo Piza
RESPONDENT:
Giresunspor, Türkiye
Represented by Mr Atahan Sevimli
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I. Facts of the case
1.
On 4 August 2021, the Brazilian player Flavio Medeiros da Silva (hereinafter the Claimant
or the player) and the Turkish club Giresunspor (hereinafter the Respondent or the club)
concluded an employment agreement (hereinafter the Employment Agreement), valid for
the football seasons 2021/2022, i.e. until 31 May 2022.
2.
In Clause 6 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed upon, inter alia, that the Respondent shall make a total
payment of EUR 600,000 to the Claimant:
“The abovementioned total amount is to be paid to the Player by the Club as the monthly
salary in 10 (ten) equal instalments (10 x 60.000,00-Euro) between the period August. 2021
- May 2022. The monthly salaries are to be paid the last day of the relevant months.”
3.
On 23 May 2022, 7 June 2022 and 21 June 2022 the Claimant sent default notices to the
Respondent, requesting the payment of outstanding salaries, however, to no avail.
4.
On 9 September 2022, Claimant sent another default notice to the Respondent,
requesting the payment of three-monthly salaries of March until May 2022
(i.e. EUR 180,000) within the next 10-days, however, to no avail.
II. Proceedings before FIFA
5.
On 9 September 2022, 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
6.
The requests for relief of the Claimant were the following:
“A) To accept this claim and consider that the Respondent has overdue payables towards
the Claimant in connection to the Contract, in accordance with art. 12bis of the FIFA RSTP.
B) To order the Respondent to pay the amount overdue of EUR 180.00,00 (one hundred
eighty thousand euros) to the Claimant that corresponds to his overdue monthly salary
regarding March 2022, April 2022 and May 2022, plus interests of 5% per year on the
aforementioned amount from the date this amount became due until the date of effective
payment.
C) To impose sports sanctions on the Respondent in accordance with arts. 12bis, §4 and/or
24bis of FIFA RSTP.”
7.
The Claimant based his claim on art. 12bis of the Regulations and the legal principle pacta
sunt servanda.
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b. Position of the Respondent
8.
The Respondent rejected the claim of the Claimant.
9.
The Respondent argued that it “had made several payments (Annex-1) in regard to
2021/2022 season’s remunerations (which was claimed by the Player) to the Claimant and
therefore the proposed amount does not reflect the truth.”
10. In this respect, the Respondent was of the opinion that it “has made payments in the
amount of 490.000,00-Euro + 590.250,00-TL in regard to the Claimant’s remunerations. In this
context, the Respondent completed its financial obligations towards the Claimant.”
c. Final comments of the Claimant
11. The Claimant was requested to comment on the payments allegedly made by the
Respondent.
12. In this respect, the Claimant asserted that “As the Club confessed that only EUR 490.000
(four hundred ninety euros) was paid to the Player, it is undisputed that the Club still owes, at
least, EUR 110.000 (one hundred ten thousand euros) [= EUR 600.000 – EUR 490.000], as the
total remuneration the Club should have paid to the Player was EUR 600.000 (six hundred
thousand euros) net.”
13. However, the Claimant stressed that the Respondent “owes EUR 10.000 (ten thousand
euros) more of it has confessed – as the payment of the amount EUR 70.000, on 25 April 22
does not exist - so the Player have not received his 3 (three) last months of the Contract
from, March, April until May 2022.”
14. In this regard, the Claimant alleged that the said payment of “EUR 70.000 on 25 April 2022,
is not real. The Player denies the veracity of this proof of payment and to demonstrate the
truth we present attached – and below - the Player’s Bank Statement from April to August that
clearly shows that this amount has not entered into the Player’s account, neither any other
payments in the following months.”
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REF FPSD-7402
15. Following the above, the Claimant provided for an overview of all salary payments that
have been made:
16. As to the payments made in the Turkish Liras, the Claimant acknowledged that those have
been duly made, yet argued that those payments “are not salary but matches bonus that
was paid to all players”.
17. In view of the above, the Claimant reiterated that the amount of EUR 180,000 remained
outstanding.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single 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
9 September 2022 and submitted for decision on 22 November 2022. Taking into account
the wording of art. 34 of the October 2022 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.
2.
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
Regulations on the Status and Transfer of Players (October 2022 edition), he is competent
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to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between a Brazilian player and a Turkish club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (October 2022
edition), and considering that the present claim was lodged on 9 September 2022, the July
2022 edition of said regulations (hereinafter the Regulations) is applicable to the matter at
hand as to the substance.
b. Burden of proof
4.
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 he 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
5.
His 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 he will refer only to the facts, arguments and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
outstanding payments based on the Employment Agreement, in the amount of
EUR 180,000, corresponding to full salaries for March 2022, April 2022 and May 2022.
7.
In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the latter had a valid justification
for not having complied with its financial obligations.
8.
The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties.
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9.
Nonetheless, the Single Judge noted that the evidence provided by the Respondent
(namely proofs of payment in Turkish Liras) does not prove beyond doubt the payment
of the amounts claimed as outstanding by the Claimant. In this respect, the Single Judge
recalled that the Employment Agreement contains salary payments in EUR and, what is
more, he observed that the respective proofs of payment specifically mentioned that the
payments in Turkish Liras were related to the payment of bonuses.
10. Furthermore, the Single Judge turned his attention to the allegations of the Respondent
that it made payments in the amount of EUR 490,000 to the Claimant. However, the Single
Judge pointed out that the payments, but for an amount of EUR 70,000 allegedly made on
25 April 2022, were undisputed by the Claimant as well as not requested in the claim.
11. At this point, the Single Judge turned his attention to above-mentioned alleged payment
of EUR 70,000. In this respect, the Single Judge noted that in support of his argumentation,
the Respondent provided a proof of payment. Equally, the Single Judge took note that the
Claimant provided evidence that the said payment of EUR 70,000 does not appear in his
bank statements.
12. Based on the evidence on file, the Single Judge decided to reject the argumentation of the
Respondent that such payment had been made since: (i) the amount does not appear in
back statements of the Claimant; (ii) in comparison to the rest of the proofs of payment,
the above mentioned “receipt” does not specify the name of the beneficiary.
13. Consequently, the Single Judge concluded that no reasonable justification was presented
by the Respondent for not having complied with the terms of the contract. Bearing in
mind the basic legal principle of pact sunt servanda, which in essence means that
agreements must be respected by the parties in good faith, the Respondent is held liable
to pay the Claimant the outstanding amounts deriving from the contract concluded
between the parties, namely EUR 180,000.
ii. Consequences
14. Having stated the above, the members of the Single Judge observed that the financial
obligations deemed as outstanding in the present case correspond to the remaining
salaries for March 2022, April 2022 and May 2022 (3 times EUR 60,000).
15. 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 180,000, as detailed
above.
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16. 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 over the respective amounts as follows:
-
EUR 60,000 plus 5% interest p.a. as from 1 April 2022 until the date of the effective
payment;
-
EUR 60,000 plus 5% interest p.a. as from 1 May 2022 until the date of the effective
payment;
-
EUR 60,000 plus 5% interest p.a. as from 1 June 2022 until the date of the effective
payment.
iii. Art. 12bis of the Regulations
17. In continuation, the Single Judge referred to art. 12bis 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.
18. 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.
19. 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.
20. The Single Judge further established that by virtue of art. 12bis of the Regulations he has
competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the fifth offense (first being Ref. Nr. 20-01219, second being FPSD-4416,
third being FPSD-4439 and fourth being FPSD-7585) by the club within the last two years,
the Single Judge decided to impose a reprimand and a fine of USD 30,000 on the club in
accordance with art. 12bis of the Regulations.
21. 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
22. 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
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
23. 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.
24. 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.
25. 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.
26. 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.
d. Costs
27. 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, the Single Judge decided that no procedural costs
were to be imposed on the parties.
28. 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.
29. Lastly, the Single Judge concluded his 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, Flavio Medeiros da Silva, is accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount(s):
-
EUR 60,000 outstanding remuneration plus 5% interest p.a. as from 1 April 2022
until the date of the effective payment;
EUR 60,000 outstanding remuneration plus 5% interest p.a. as from 1 May 2022
until the date of the effective payment;
EUR 60,000 outstanding remuneration plus 5% interest p.a. as from 1 June 2022
until the date of the effective payment.
3.
A reprimand shall be imposed on the Respondent.
4.
The Respondent is further ordered to pay a fine in the amount of USD 22,500. The fine is
to be paid within 30 days of notification of the present decision to FIFA to the following
bank account with reference to case nr. FPSD-7402:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
5.
Full payment of the amounts stipulated in point 2. (including all applicable interest) shall
be made to the bank account indicated in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, if full payment
of the amounts stipulated in point 2. (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.
7.
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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
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Chief Legal & Compliance Officer
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).
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