DRC Overdue Payables
Texto da decisão
REF FPSD-3340
Decision of the
Dispute Resolution Chamber
passed on 13 October 2021
regarding an employment-related dispute concerning the player Armando
Sadiku
BY:
Mario Flores Chemor (Mexico)
CLAIMANT:
Armando Sadiku, Albania
Represented by Sami Dinc
RESPONDENT:
BB Erzurumspor Kubülü Derneği, Turkey
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REF FPSD-3340
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 the Dispute
Resolution Chamber, requesting inter alia payment of the second instalment of the
termination agreement plus the relevant interest (case ref. FPSD-2612).
5.
On 13 July 2021, the player lodged a second claim against the club before the Dispute
Resolution Chamber, requesting inter alia payment of the third instalment of the
termination agreement plus the relevant interest (case ref. FPSD-3040).
6.
In parallel, on 5 August 2021, the player put the club in default and granted it with a 10
days’ deadline in order to proceed the payment of EUR 50,000 net, corresponding to the
fourth instalment of the termination agreement.
7.
On 17 August 2021, the player lodged the claim at hand against the club requesting
payment of the abovementioned EUR 50,000 net, plus 20% interest p.a. as from 5 August
2021 until the date of effective payment.
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REF FPSD-3340
8.
On 1 September 2021, the club rejected the proposal previously made by the FIFA general
secretariat in the case at hand.
9.
In its reply, the club referred to the financial effects caused by the COVID pandemic and by
the fluctuation of the currency. In doing so, the club stated that it faced a force majeure
situation and requested: (i) to be granted with additional time to seek an amicable solution
to the case; and (ii) not to be sanctioned in line with art. 12bis of the FIFA Regulations on
the Status and Transfer of Players (RSTP).
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as 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 17 August 2021 and
submitted for decision on 13 October 2021. Taking into account the wording of art. 34 of
the October 2021 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.
11. 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 (August 2021 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 an Albanian player and a Turkish club.
12. 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 Player (August 2021 edition), and
considering that the present claim was lodged on 17 August 2021, the February 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
13. 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).
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REF FPSD-3340
c. Merits of the dispute
14. 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
15. The Single Judge then moved to the substance of the matter, and took note of the fact that
the club acknowledged its debt towards the player and, inter alia, referred to the COVID-19
pandemic in order to justify the lack of payment.
16. Having said this, the Single Judge highlighted that FIFA issued a set of guidelines, the COVID19 Guidelines, which aim at providing appropriate guidance and recommendations to
member associations and their stakeholders, to both mitigate the consequences of
disruptions caused by COVID-19 and ensure that any response is harmonised in the common
interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as
FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in
connection with the regulatory consequences of the COVID-19 outbreak and identifies
solutions for new regulatory matters.
17. In this context, the Single Judge noted that the club did not file together with its reply any
documentation pertaining to the question of the COVID-19 pandemic. Consequently, the
Single Judge underlined that the club failed to meet its burden of proof in accordance with
the aforementioned art. 13 par. 5 of the Procedural Rules insofar as the FIFA COVID FAQ, in
its question no. 1, establishes that the Bureau of the FIFA Council did not determine that the
COVID-19 outbreak was a force majeure situation in any specific country or territory, or that
any specific employment or transfer agreement was impacted by the concept of force
majeure; rather, it provides that whether or not a force majeure situation (or its equivalent)
exists in the country or territory is a matter of law and fact, which must be addressed on a
case-by-case basis vis-à-vis the relevant laws that are applicable to any specific employment
or transfer agreement.
18. For the sake of completeness, the Single Judge also deemed that the alleged financial
difficulties faced by the club because of the economic crisis in Turkey, and the consequential
loss of value of the local currency, are not valid arguments in view of well-established FIFA
jurisprudence. Likewise, the Single Judge confirmed that financial difficulties per se are not
considered a valid reason not to perform contractual obligations.
19. On account of the aforementioned considerations, the Single Judge made reference to the
general legal principle of pacta sunt servanda, and decided that the club shall be liable to pay
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REF FPSD-3340
the player the outstanding remuneration sought, corresponding to the fourth instalment of
the termination agreement and amounting to EUR 50,000 net.
20. In continuation, the Single Judge turned his attention to the content of clause 4 of the
termination agreement. After carefully analysing the wording of such clause, he
acknowledged that the parties agreed upon an interest rate of 20% per annum in case of
default from the club.
21. In doing so, the Single Judge recalled FIFA’s long-standing jurisprudence and concluded that
such parameter is excessive. As such, the Single 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.
22. Finally, the Single Judge took due consideration of the player’s requests for relief and
determined that said interest shall arise as from 5 August 2021 until the date of effective
payment.
ii. Art. 12bis of the Regulations
23.
Having established the above, 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 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 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.
26.
The Single 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 the club is a repeat offender, the Single Judge decided to impose a fine on the
Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.
27.
Considering the amount due of EUR 50,000, the Single Judge regarded a fine amounting
to CHF 7,500 as appropriate and hence decided to impose said fine on the club.
28.
In this connection, the Single 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.
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REF FPSD-3340
iii. Compliance with monetary decisions
29. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24bis
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.
30. 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.
31. Therefore, bearing in mind the above, the Single 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.
32. 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.
33. 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. 24bis par.
8 of the Regulations.
d. Costs
34. 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.
35. 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.
36. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF FPSD-3340
III. Decision of the Dispute Resolution Chamber
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 50,000 net as outstanding remuneration plus 18% interest p.a. as from 5 August
2021 until the date of effective payment.
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.
5.
Pursuant to art. 24bis 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 the ban shall
be 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
made by the end of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in accordance
with art. 24bis par. 7 and 8 and art. 24ter of the Regulations on the Status and Transfer of
Players.
7. The Respondent is ordered to pay a fine of USD 7,500 to FIFA within 30 days of the notification
of this decision. Such payment is to be made to the bank account below with reference to the
present proceedings:
UBS Zurich
366.677.01U (FIFA Players’ Status)
SWIFT: UBSWCHZH80A, Clearing number 230, IBAN: CH 27 0023 0230 3666 7701U
8. This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-3340
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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