DRC Overdue Payables
Texto da decisão
REF. FPSD-9222
Decision of the
Dispute Resolution Chamber
passed on 23 March 2023
regarding an employment-related dispute concerning the player Fabiano
Alves Nobrega Luz
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Michele COLUCCI (Italy), Member
Mario FLORES CHEMOR (Mexico), Member
CLAIMANT:
Patrick Fabiano Alves Nobrega Luz, Brazil
Represented by Pedro Macieirinha
RESPONDENT:
Salmiya SC, Kuwait
pg. 2
REF. FPSD-9222
I. Facts of the case
1.
On 23 March 2022, the Brazilian player, Patrick Fabiano Alves Nobrega Luz (hereinafter: the
player or the Claimant), and the Kuwaiti club, Salmiya SC (hereinafter: the club or the
Respondent) entered into an employment contract valid as from 1 August 2021 until 30 June
2023 (hereinafter: the Employment Contract).
2.
On 22 July 2022, the player put the club in default for inter alia overdue payables.
3.
On 13 August 2022, the player and the club signed a termination agreement (hereinafter:
the Agreement). Accordingly, the parties decided to terminate the Employment Contract, as
well as the club undertook to pay the player the total amount of USD 300,000 net, payable
as follows:
a. USD 100,000 net on 29 August 2022;
b. USD 100,000 net on 15 November 2022; and
c. USD 100,000 net on 1 March 2023.
4.
Under clause 2 of the Agreement, the parties established that: “the failure of the club to pay
any of the instalments agreed in the due dates entitles the player to claim all the remaining
instalments and amounts in debt, plus interests at 5% rate since the due dates until effective
payment, plus 20% of the total amounts in debt as penalty clause”.
5.
Furthermore, clause 3 of the Agreement read as follows (sic): “this Termination Agreement
contains the entire agreement between if not playing the the parties pertaining to the subject
matter hereof and fully supersedes any and all prior agreements and understandings between
parties”.
6.
On 14 December 2022, the player put the club in default and requested payment of the
following concepts within 10 days:
•
USD 25,000 as the balance of the first instalment of the Agreement plus USD
369.86 as interests over such amount;
•
USD 100,000 as the second instalment of the Agreement plus USD 410.96 as
interests over such amount;
•
USD 100,000 as the third instalment of the Agreement plus USD 410.96 as
interests over such amount; and
•
USD 45,000 as contractual penalty corresponding to 20% of the outstanding
remuneration.
pg. 3
REF. FPSD-9222
7.
On 18 January 2023, the player put the club in default for the second time and reiterated
his request for payment of the same concepts and the accrued interests. The player
granted the club with an additional 10 days’ deadline to remedy the breach.
II. Proceedings before FIFA
8.
On 12 February 2023, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
9.
In his claim, the player argued that the club failed to comply with its financial duties under
the Agreement in a timely manner, hence triggering the acceleration and penalty clauses
therein included.
10. Consequently, he requested to be awarded USD 272,270.55 plus 5% interest, broken down
as follows, quoted verbatim:
“- 25.000,00 USD that should have been paid on 29 August 2022 plus interests at rate of 5%
in the amount of 489,73 USD;
- 100.000,00 USD that should have been paid on 15 November 2022 plus interests at rate
of 5% in the amount of 890,41 USD;
- 100.000,00 USD to be paid on 1 March 2023 that became due pursuant to the penalty
clause agreed plus interests at rate of 5% in the amount of 890,41 USD;
- 45,000.00 USD as 20% of the total amounts in debt as a penalty clause”.
b. Position of the club
11. On 3 March 2023, the club filed its reply to the claim of the player and stated inter alia as
follows, quoted verbatim:
“The status of the player at the beginning of the settlement shows that he did not join any
club, and that the settlement agreement was signed so that the player’s financial income is
not affected.
But if he contracts with another club, what is the reason for concluding the agreement!!!
The club has paid part of the first installment of 75,000 US dollars, leaving it with 25,000
thousand US dollars. This is proof of the club’s goodwill to pay the rest of the dues.
The third clause states on settlement validity in event the player does not play.
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REF. FPSD-9222
If he plays, this agreement is not valid, and therefore the player is not entitled to claim any
financial rights for the rest of the settlement.
Whereas, the player has joined a club in Brazil.
The player requested the international card with the intention of playing with another club,
and the club did not delay in standing in its way to benefit financially from the player.
The club did not ask for any monetary sums in exchange for transfer the player.
Based on the foregoing, we refuse the proposal of the FIFA General Secretariat.
- Dropping the remaining amounts due from the settlement, based on the third clause of
the settlement.
- Judgement that the player is not entitled to refer to the settlement agreement for violating
its provisions (third clause)”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
12. 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 12 February 2023 and
submitted for decision on 23 March 2023. 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.
13. 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 par. 1 lit. b)
of the Regulations on the Status and Transfer of Players (October 2022 edition), the Dispute
Resolution Chamber is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a Brazilian player
and a Kuwaiti club.
14. 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 (October 2022 edition), and
considering that the present claim was lodged on 12 February 2023, the cited edition of
pg. 5
REF. FPSD-9222
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
15. 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
16. 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
17. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that it pertains to a claim of a player against a club for
overdue payables.
18. In this context, the DRC highlighted that it remained undisputed between the parties that
the club did only pay the player USD 75,000 out of the USD 100,000 corresponding to the
first instalment of the Agreement.
19. In the Chamber’s view, the reasons invoked by the club for the non-payment, besides not
being entirely clear, also lack contractual and regulatory basis. In particular, the DRC
underscored that in case the parties intended to agree upon any type of conditions
precedent and/or mitigation of the amount established in the Agreement, they should have
done so in writing. On the contrary and in the absence of any written guidance to this
extent, the DRC decided that the position of the club could not be upheld.
20. On this note, the Chamber determined that the club should be liable to pay the player
outstanding remuneration. Furthermore, the DRC decided that the acceleration and
penalty clauses included in the Agreement (i.e., clauses 2 and 3) were triggered by the
default of the club and shall be enforced in line with the general legal principle of pacta
pg. 6
REF. FPSD-9222
sunt servanda. Accordingly, the player shall be entitled to the amount sought, totalling USD
225,000.
21. In addition, taking into consideration the player’s request, the principle of ne ultra petita,
and the constant practice of the Chamber in this regard, the latter decided to award
interest at the rate of 5% p.a. on the outstanding amounts as follows:
a. as from 30 August 2022 for the first instalment of the Agreement until the date of
effective payment; and
b. as from 16 November 2022 for the two last instalments of the Agreement until the
date of effective payment.
22. Lastly, the Chamber pointed our that the contractual penalty of USD 45,000 shall also be
awarded insofar as it is contractually based, reasonable and proportionate in line with the
jurisprudence of the Football Tribunal. Notwithstanding, by recalling the principle of ne bis
in idem, the DRC established that no interest should be applicable over the penalty.
ii. Art. 12bis of the Regulations
23. Having established the above, the DRC 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 and conversely to the club’s argumentation, the DRC confirmed that the player
put the club in default of payment of the amounts sought, which had fallen due for more
than 30 days, and granted the club with 10 days to cure such breach of contract.
25. Accordingly, the DRC 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.
26. The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the club. On account of the above and bearing in mind
that this is the first offense by the club within the last two years, the DRC decided to impose
a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
27. In this connection, the DRC highlighted that a repeated offence will be considered as an
aggravating circumstance and lead to more severe penalty in accordance with art. 12bis
par. 6 of the Regulations.
pg. 7
REF. FPSD-9222
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. Therefore, bearing in mind the above, the DRC decided that the club must pay the full
amount due (including all applicable interest) to the player within 45 days of notification of
the decision, failing which, at the request of the player, 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 club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
31. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
32. 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
33. 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.
34. 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.
35. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 8
REF. FPSD-9222
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Patrick Fabiano Alves Nobrega Luz, is partially accepted.
2.
The Respondent, Salmiya SC, must pay to the Claimant the following amounts:
- USD 25,000 as outstanding remuneration plus 5% interest p.a. as from 30 August 2022
until the date of effective payment; and
- USD 200,000 as outstanding remuneration plus 5% interest p.a. as from 16 November
2022 until the date of effective payment; and
- USD 45,000 as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
5.
Full payment (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
(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
Chief Legal & Compliance Officer
pg. 9
REF. FPSD-9222
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).
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