DRC Overdue Payables
Texto da decisão
REF FPSD-3040
Decision of the Dispute Resolution Chamber
(DRC) Judge
passed on 18 August 2021
regarding an employment-related dispute concerning the player Armando Sadiku
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Armando Sadiku, Albania
Represented by Mr Sami Dinc
RESPONDENT:
BB Erzurumspor Kubülü Derneği, Turkey
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REF FPSD-3040
I.
FACTS OF THE CASE
1.
On 22 January 2021, the Albanian player, Mr Armando Sadiku (hereinafter: the player or
the Claimant), and the Turkish club, BB Erzurumspor Kubülü Derneği (hereinafter: the club
or the Respondent), signed a termination agreement related to the previous employment
relationship maintained between them (hereinafter: the termination agreement).
2.
In accordance with clause 3 of the termination agreement, the club undertook to pay the
player the following amounts:
a.
b.
c.
d.
EUR 60,000 net by 10 February 2021;
EUR 70,000 net by 30 March 2021;
EUR 60,000 net by 30 May 2021; and
EUR 50,000 net by 30 July 2021.
3.
Additionally, clause 4 of the termination agreement stipulated the following: “[The club]
herewith agrees and undertakes that should [the club] fail to pay any of the aforementioned
instalments specified under article 3 / point a-b-c-d on their due dates including the 5 days
grace period, an interest in favour to the Player on the amount of 20% (twenty per cent)
from the instalment total amount shall start to accrue without need of any further
notification / notice and / counter verdict. [The club] irrevocably agrees that this interest is
not extortionate, is set by the free will of the Parties and with the signing of this agreement,
[the club] waives from the demand rights of reduction and amortization of the penalty. The
Parties agree that this provision is the indispensable provision (sine qua non) of this
Agreement and this Agreement has been signed taking into consideration of this
provision”.
4.
On 25 May 2021, the player lodged a first claim against the club before FIFA, requesting
inter alia payment of the second instalment of the termination agreement plus the relevant
interest.
5.
In parallel, on 2 July 2021, the player put the club in default and granted it with a 10 days’
deadline in order to proceed the payment of EUR 60,000 net, corresponding to the third
instalment of the termination agreement.
6.
Subsequently, the player lodged the claim at hand against the club, requesting payment of
the abovementioned third instalment i.e. EUR 60,000 net, plus 20% interest p.a. as from 5
June 2021 until the date of effective payment.
7.
On 30 July 2021, the club rejected the proposal previously made by the FIFA general
secretariat, without any reasoning.
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REF FPSD-3040
II.
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a.
Competence and applicable legal framework
8.
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 13 July 2021 and submitted
for decision on 18 August 2021. Taking into account the wording of art. 21 of the January
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.
9.
The DRC Judge then referred to art. 3 par. 1 of the Procedural Rules and observed that in
accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the
Status and Transfer of Players (edition February 2021), he is competent to deal with the
matter at stake, which concerns an employment-related dispute with an international
dimension between an Albanian player and a Turkish club.
10.
Subsequently, the DRC 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 Player (edition February 2021),
and considering that the present claim was lodged on 13 July 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
a.
Burden of proof
11.
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.
12.
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.
b.
13.
Merits of the dispute
His competence 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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REF FPSD-3040
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
14.
The DRC Judge then moved to the substance of the matter, and took note that the player
lodged a claim seeking payment of the third instalment of the termination agreement
previously concluded with the club.
15.
In this context, the DRC Judge observed that the club, for its part, failed to present any
evidence of argumentation capable of sustaining his opposition to the claim of the player,
in spite of having been invited to do so. In this way, the DRC considered that the club
renounced its right to defence and thus accepted the allegations of the player.
16.
As a consequence of the aforementioned consideration, the DRC Judge concurred that in
accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis
of the documents already on file, in other words, upon the statements and documents
presented by the player.
17.
In light of the abovementioned, the DRC Judge decided that the outstanding remuneration
requested by the player in his claim is both contractually based and undisputed by the club.
Therefore, in accordance with the general legal principle of pacta sunt servanda, the DRC
Judge deemed that the club should be liable to pay the player the amount sought (i.e. EUR
60,000 net).
18.
In continuation, the DRC Judge turned his attention to the content of clause 4 of the
termination agreement. After carefully analysing the wording of such clause, the DRC Judge
acknowledged that the parties agreed upon an interest rate of 20% per annum in case of
default from the club.
19.
In doing so, the DRC Judge recalled FIFA’s long-standing jurisprudence and concluded that
such parameter is excessive. As such, the DRC Judge determined that the relevant interest
rate had to be reduced to 18% per annum, which was deemed reasonable and
proportionate in line with the common approach of the Dispute Resolution Chamber.
20.
At the end, the DRC Judge took due consideration of the player’s requests for relief and
determined that said interest shall arise as from 5 June 2021 until the date of effective
payment.
ii. Art. 12bis of the Regulations
21.
Having established the above, the DRC 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.
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REF FPSD-3040
22.
To this end, the DRC Judge 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.
23.
Accordingly, the DRC 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.
24.
The DRC Judge further established that by virtue of art. 12bis par. 4 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 second offense by the club within the last two years, the DRC Judge
decided to impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
25.
In this connection, the DRC Judge 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.
iii. Compliance with monetary decisions
26.
Finally, the DRC Judge referred to par. 1 lit. a) 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.
27.
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. The overall
maximum duration of the registration ban shall be of up to three entire and consecutive
registration periods.
28.
Therefore, bearing in mind the above, the DRC Judge 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. 24bis par. 2, 4, and 7 of the Regulations.
29.
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.
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30.
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. 24bis par. 8
of the Regulations.
c.
Costs
31.
The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which
“DRC proceedings relating to disputes between clubs and players in relation to the
maintenance of contractual stability as well as international employment related disputes
between a club and a player are free of charge”. Accordingly, the DRC Judge decided that
no procedural costs were to be imposed on the parties.
32.
Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
33.
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-3040
III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE
1.
The claim of the Claimant, Armando Sadiku, is partially accepted.
2.
The Respondent, BB Erzurumspor Kubülü Derneği, has to pay to the Claimant, the following
amount:
- EUR 60,000 net as outstanding remuneration plus 18% interest p.a. as from 5 June 2021
until the date of effective payment.
3.
A reprimand is imposed on the Respondent.
4.
Any further claims of the Claimant are rejected.
5.
Full payment (including all applicable interest) shall be made to the bank account set out in
the enclosed Bank Account Registration Form.
6.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 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
paid by the end of the of the three entire and consecutive registration periods.
7.
The consequences shall only be enforced at the request of the Claimant in accordance
with article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and
Transfer of Players.
8.
This decision is rendered without costs.
For the Dispute Resolution Chamber Judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-3040
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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