DRC Overdue Payables
Texto da decisão
REF FPSD-8246
Decision of the
Dispute Resolution Chamber
passed on 15 February 2023
regarding an employment-related dispute concerning
the player Rafael Nogueira Miranda
BY:
Angela COLLINS (Australia)
CLAIMANT:
Rafael Nogueira Miranda, Brazil
RESPONDENT:
GS Diagoras 1905, Greece
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I. Facts of the case
1. On 3 August 2022, and following an employment-related dispute, the Single Judge of the
DRC decided the following:
“2. The Respondent, GS Diagoras 1905, has to pay to the Claimant, the following amounts:
- EUR 6,160 as outstanding remuneration plus 5% interest p.a. as from the due dates until the
date of effective payment;
- EUR 11,616 as compensation for breach of contract without just cause plus 5% interest p.a. as
from 24 May 2022 until the date of effective payment.”
2. On 28 September 2022, the parties concluded a settlement agreement, by means of which
the club accepted to pay the amount of EUR 17,776 in settlement of previous disputes.,
payable as follows:
- EUR 8,888 at the date of signature;
- EUR 8,888 by no later than 27 October 2022
3. Clause 2 par. 2 of the settlement agreement stipulated the following:
“In case of failure to proceed to the duly payment of one of the aforementioned installments on
the stipulated dates, it is mutually agreed that a penalty fee of EUR 2,000 (Two Thousand Euros)
shall apply against the Club without any prior notice on behalf of the Player.”
4. According to clause 6 of the settlement agreement, “any dispute arising or related with the
signature, interpretation or performance of the Agreement shall be resolved before the
competent judicial bodies of FIFA and in particular Football Tribunal”
5. On 4 November 2022, the player, via his lawyer, sent a default notice requesting the
payment of EUR 8,888 for the second instalment of the settlement agreement, as well as a
penalty of EUR 2,000, and granted 10 days to remedy the default.
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II. Proceedings before FIFA
6. On 16 November 2022, the player lodged a claim before FIFA for outstanding
remuneration and requested the payment of the following, plus 5% interest p.a.:
- Second instalment of the Settlement Agreement: EUR 8.888
- Penalty fee of the agreement: EUR 2.000
7. In its reply, the Respondent accepted to pay the amount of EUR 8,888, corresponding to the
second instalment of the settlement agreement, but rejected the payment of the penalty.
8. The Respondent explained that it was facing financial difficulties. Within this context, the
club explained that the player suggested an alternative payment scheme, which “sounded
like music in the ears of Diagoras”.
9. Yet, the Respondent complained that, despite the negotiations, the player served a default
letter “out of the blue”.
10. As such, the club considered that “it is obvious that the penalty clause was not activated
and thus the Club shall not compensate the Player with the additional amount of € 2,000.”
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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 Judge or Single) analysed whether 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 16
November 2022 and submitted for decision on 15 February 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.
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), the Single Judge
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Brazil player and a Greek club.
3.
Subsequently, the 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 Players (October 2022 edition),
and considering that the present claim was lodged on 16 November 2022, the October
2022 edition 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 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
5.
Its 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
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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
6.
The foregoing having been established, the Judge noted that, after a previous decision of
the Dispute Resolution Chamber (cf. point I 1 above), the parties concluded a settlement
agreement on 28 September 2022, by means of which the club accepted to pay the
amount of EUR 17,776 in settlement of previous disputes, payable as follows:
- EUR 8,888 at the date of signature;
- EUR 8,888 by no later than 27 October 2022
7.
Thereafter, the Single judge acknowledged that the player lodged a claim before FIFA for
outstanding remuneration and requested the payment of, inter alia, the second
instalment of the settlement agreement (EUR 8,888).
8.
On the other hand, the Single Judge took note of the position of the Respondent, which
fundamentally agreed that said amount is due.
9.
Consequently, in strict application of the principle of pacta sunt servanda, the Judge
established that the Respondent has to pay to the Claimant, the outstanding amount of
EUR 8,888, corresponding to the second instalment of the settlement agreement.
10. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Judge decided to award 5% interest p.a. over said amount
as from the due date.
11. In addition, the Single Judge also observed that the Claimant requested the payment of
EUR 2,000, corresponding to the penalty fee established in clause 2 par. 2 of the
settlement agreement. The Single Judge noted that the Respondent that said penalty
clause was not due, particularly given that the player served a default letter “out of the
blue”.
12. However, the Single Judge observed that the penalty clause stipulated the following:
“In case of failure to proceed to the duly payment of one of the aforementioned installments
on the stipulated dates, it is mutually agreed that a penalty fee of EUR 2,000 (Two Thousand
Euros) shall apply against the Club without any prior notice on behalf of the Player.” (underline
added)
13. In view of the above, and given that the club initially failed to pay the second instalment
of the settlement agreement, the Single Judge established that the penalty fee of EUR
2,000 had to be paid in full, since the conditions for its payment took place.
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ii. Compliance with monetary decisions
14. 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.
15. 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.
16. 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.
17. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
18. 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.
19. 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.
20. 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.
21. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
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22. 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 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.
23. 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.
d. Costs
24. 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.
25. 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.
26. Lastly, the Single Judge concluded her 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, Rafael Nogueira Miranda, is accepted.
2.
The Respondent, GS Diagoras 1905, has to pay to the Claimant, the following amounts:
- EUR 8,888 as outstanding remuneration plus 5% interest p.a. as from 28 October 2022
until the date of effective payment;
- EUR 2,000 as contractual penalty.
3.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
4.
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.
5.
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.
6.
This decision is rendered without costs.
7.
A warning (art. 12 bis of the Regulations) is imposed on the Respondent.
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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