DRC Overdue Payables
Texto da decisão
REF FPSD-7522
Decision of the
Players’ Status Chamber
passed on 8 November 2022
regarding a contractual dispute concerning the player William Gabriel
Mendieta Pintos
BY:
Julie JORGENSEN (Denmark)
CLAIMANT:
SE Palmeiras, Brazil
Represented by CSMV Advogados
RESPONDENT:
Club Olimpia, Paraguay
Represented by Ariel Reck
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REF FPSD-7522
I. Facts of the case
1.
On 4 January 2017, the Brazilian club, SE Palmeiras (hereinafter: the Claimant) and the
Paraguayan club, Olimpia (hereinafter: the Respondent) concluded an agreement
(hereinafter: the transfer agreement) regarding the permanent transfer of the player
William Gabriel Mendieta Pintos (hereinafter: the player) from the Claimant to the
Respondent.
2.
According to the transfer agreement, the Respondent undertook to pay the Claimant a
transfer fee of USD 750,000.
3.
Furthermore, the transfer agreement established a sell-on fee in favour of the Claimant
of 50% of the player’s future transfer. In particular, the transfer agreement held that in
case of a subsequent transfer of the player, the Respondent would pay to the Claimant
the higher amount between 50% of the subsequent transfer fee paid by the new club and
USD 350,000.
4.
Clause 3.2.4 of the transfer agreement reads as follows:
“The parties agreed that if there is a default or delay with the payment mentioned in the
hypothesis under the terms of clause 3.2. above, for more than ten (10) days will imply a fine
in the amount of ten percent (ten percent) in favour of PALMEIRAS plus one percent (1.0%)
for each month of delay, from the first day of delay until the effective date of payment”.
5.
According to information contained in the Transfer Matching System (TMS), on 6 January
2020, the Respondent concluded an agreement with the Mexican club, FC Juárez,
regarding the permanent transfer of the player to the said club, involving a transfer fee
of USD 600,000.
6.
On 11 June 2020, the Claimant lodged a claim against the Respondent in front of FIFA (ref.
20-00843), requesting payment of the following monies:
- USD 75,000 resulting from art. 2.2. (iv) of the transfer agreement, plus 5% interest p.a.
as of 30 July 2019;
- USD 350,000 resulting from art. 3.3 of the transfer agreement, plus 1% monthly
interest as from 12 December 2019 or alternatively as from the date of the player’s
transfer to Mexico;
- A fine of 10% on the outstanding amounts.
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REF FPSD-7522
7.
By decision dated 6 October 2020, the Players’ Status Chamber of the Football Tribunal
partially accepted the Claimant’s claim and awarded the following amounts to the
Claimant (hereinafter: the Decision):
- USD 75,000 plus 5% interest p.a. as from 13 November 2019 until the date of effective
payment;
- USD 350,000 plus 12% interest p.a. as from 17 January 2020 until the date of effective
payment;
- USD 35,000.
8.
The Respondent appealed the Decision to the Court of Arbitration for Sport (CAS), but
later withdrew it as the parties signed a settlement agreement on 8 February 2021
(hereinafter: the settlement agreement).
9.
In accordance with the settlement agreement, the Respondent undertook to pay to the
Claimant USD 507,044.52, as follows:
•
USD 107,044,52 by 25 February 2021;
•
USD 400,000 in 10 equal instalments of USD 40,000 each, the first due on 10
March 2021 and subsequently every 15th day of the following months.
10. Clauses 1.4 and 1.5 of the settlement agreement established that in case of default of
payment and upon a notice from the Claimant to the Respondent awarding a grace period
of 10 days for the latter to cure its breach, all instalments would be automatically due
together with a penalty of 10% on the owed amount as well as 5% interest p.a. as from
“each due date”.
11. On 24 November 2021, the Claimant put the Respondent in default and requested
payment of USD 360,000, amounting to 9 instalments under the settlement agreement
due between March and November 2021, granting the Respondent with 10 days to cure
its breach, to no avail.
12. On 25 August 2022, the Claimant put the Respondent in default and requested payment
of USD 400,000, amounting to the 10 instalments under the settlement agreement,
granting the Respondent with 10 days to cure its breach, to no avail.
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REF FPSD-7522
II. Proceedings before FIFA
13. On 19 September 2022, the Claimant lodged a claim against the Respondent in front of
FIFA asking that the latter be ordered to pay to the former overdue payables in the
amount of USD 400,000 corresponding to the unpaid portion of the settlement
agreement.
14. The Claimant further asked to be awarded interest of 5% p.a. on the amounts due as from
each of their original due dates under the settlement agreement, together with a penalty
of 10% over the total sum per clauses 1.4 and 1.5 of the settlement agreement. Lastly, the
Claimant requested that the Respondent be ordered to pay the costs of the proceeding.
15. In its reply, the Respondent did not deny owing the relevant amounts, but argued that
the amount agreed under the settlement agreement already considered a penalty and
interests as per the Decision. It therefore requested that the penalty and interest should
not apply. The Respondent equally presented a settlement proposal to the Claimant.
III. Considerations of the Players’ Status Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as
Single Judge) analysed if she was competent to deal with the case at hand. In this respect,
she took note that the present matter was presented to FIFA on 19 September 2022 and
submitted for decision on 8 November 2022. Considering the wording of art. 34 of the
June 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.
17. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 2 of the Procedural
Rules and observed that in accordance with art. 23 par. 2 in combination with art. 22 par.
1 lit. f) of the Regulations on the Status and Transfer of Players (edition July 2022), she is
competent to deal with the matter at stake, which concerns a contractual dispute
between clubs belonging to different member associations of FIFA.
18. 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 (edition July 2022),
and considering that the present claim was lodged on 19 September 2022, the said edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
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REF FPSD-7522
b. Burden of proof
16. 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, she 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
17. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, she started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, she 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
18. 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 club against another club for
overdue payables.
19. According to the Claimant, the Respondent failed to remit USD 400,000 under the
settlement agreement, and thus it seeks penalty and interests together with this amount
as contractually agreed. The Respondent, for its part, did not contest that it failed to pay
the principal amount but argued that the penalty and interest should not apply.
20. In this context, the Single Judge rejected the argumentation of the Respondent since it
entered into a valid and binding settlement agreement with the Claimant – something
which stood undisputed. Consequently, and in accordance with the general legal principle
of pacta sunt servanda, she confirmed that the sought amounts must be awarded to the
Claimant. Equally, she confirmed that the penalty of 10% and interest of 5% p.a. should
apply as contractually agreed, as both are fair and proportionate (and even low) in
accordance with the jurisprudence of the Football Tribunal.
21. Nonetheless, the Single Judge clarified that no interest should apply on the penalty under
the principle ne bis in idem. Equally, she highlighted that the interest should be awarded
as requested by the Claimant given the principle ne ultra petita, although the latter could
have asked for the enforcement of the acceleration clause (clause 1.5 of the settlement
agreement) but did not do so for reasons the Single Judge could not precise.
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REF FPSD-7522
22. 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 which were outstanding under the settlement agreement, i.e., USD 400,000
in total, together with interests as specified above and a penalty of USD 40,000.
ii. Art. 12 bis of the Regulations
23. 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.
24. To this end, the Single Judge 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 it a 10-day deadline to cure such breach of contract.
25. Accordingly, the Single Judge confirmed that the Respondent 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.
26. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the Respondent. Because of the above and
bearing in mind that this is the 4th offense by the Respondent within the last two years,
the Single Judge decided to impose a fine of USD 30,000 on the Respondent in accordance
with art. 12bis par. 4 lit. c) of the Regulations.
27. 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.
iii. Compliance with monetary decisions
28. 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. In this regard, she highlighted that, against clubs, the
consequence of the failure to pay the relevant amounts in due time shall consist, in
principle, of a ban from registering any new players, either nationally or internationally,
up until the due amounts are paid.
29. Notwithstanding the above, the Single Judge wished to remark that in accordance with
art. 24 par. 3 of the Regulations, the aforementioned consequences may be excluded
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REF FPSD-7522
where the pertinent FIFA deciding body has already imposed on the same party a sporting
sanction on the basis of article 12bis, 17 or 18quater of the Regulations.
30. In this respect, the Single Judge recalled that by means of a decision of the Football
Tribunal passed on date 9 June 2022 and notified on 13 June 2022, a transfer ban has
been imposed on the Respondent pursuant to art. 17 par. 4 of the Regulations, namely in
the case FPSD-4982.
31. Accordingly, the Single Judge established that in casu art. 24 par. 2 of the Regulations shall
not apply, insofar as in case the Respondent fails to comply with the decision at hand, the
application of a further ban from registering any new players on top of the one already
being served by the Respondent would be moot and against the spirit of the Regulations,
in particularly the enforcement mechanism established under art. 24 of the Regulations.
32. In view of the above, the Single Judge decided that if the aforementioned sum plus
interest is not paid within 30 days of notification of this decision, the present matter shall
be submitted, upon request of the Claimant, to the FIFA Disciplinary Committee for its
consideration and formal decision.
33. 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.
d. Costs
34. Finally, the Single Judge referred to art. 25 par. 1 and 2 of the Procedural Rules, according
to which in disputes between clubs, costs in the maximum amount of USD 25,000 are
levied. As per art. 25 par. 5 of the Procedural Rules, the Single Judge will decide the
amount that each party is due to pay, in consideration of the parties’ degree of success
and their conduct during the procedure, as well as any advance of costs paid.
35. Considering that the claim of the Claimant has been successful, the Single Judge
concluded that the Respondent shall bear the costs of the current proceedings before
FIFA in its entirety. According to Annexe 1 of the Procedural Rules, the costs of the
proceedings are to be levied based on the amount in dispute. Consequently, the Single
Judge concluded that the maximum amount of costs of the proceedings corresponds to
USD 25,000.
36. In light of the above, the Single Judge determined the costs of the current proceedings to
the amount of USD 20,000 and concluded that said amount has to be paid by the
Respondent in order to cover the costs of the present proceedings. The Claimant is
accordingly entitled to a reimbursement of the advance of costs paid at the start of the
proceedings.
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REF FPSD-7522
IV. Decision of the Players’ Status Chamber
1.
The claim of the Claimant, Sociedade Esportiva Palmeiras, is partially accepted.
2.
The Respondent, Club Olimpia, has to pay to the Claimant the following amounts:
a. USD 40,000 plus interest of 5% per year as from 11 March 2021 until the date of
effective payment;
b. USD 40,000 plus interest of 5% per year as from 16 April 2021 until the date of effective
payment;
c. USD 40,000 plus interest of 5% per year as from 16 May 2021 until the date of effective
payment;
d. USD 40,000 plus interest of 5% per year as from 16 June 2021 until the date of effective
payment;
e. USD 40,000 plus interest of 5% per year as from 16 July 2021 until the date of effective
payment;
f.
USD 40,000 plus interest of 5% per year as from 16 August 2021 until the date of
effective payment;
g. USD 40,000 plus interest of 5% per year as from 16 September 2021 until the date of
effective payment;
h. USD 40,000 plus interest of 5% per year as from 16 October 2021 until the date of
effective payment;
i.
USD 40,000 plus interest of 5% per year as from 16 November 2021 until the date of
effective payment;
j.
USD 40,000 plus interest of 5% per year as from 16 December 2021 until the date of
effective payment;
k. USD 40,000 as contractual penalty.
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.
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REF FPSD-7522
5.
If full payment (including all applicable interest) is not made within 30 days of notification
of this decision, the present matter shall be submitted, upon request of the Claimant, to
the FIFA Disciplinary Committee.
6.
The final costs of the proceedings in the amount of USD 20,000 are to be paid by the
Respondent to FIFA. FIFA will reimburse to the Claimant the advance of costs paid at the
start of the present proceedings (cf. note relating to the payment of the procedural costs
below).
7.
A fine of USD 30,000 is imposed on the Respondent. Such fine is to be paid to FIFA within
30 days as from the notification of this decision with reference to case FPSD-7522 to the
following bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
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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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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