DRC Overdue Payables
Texto da decisão
REF. FPSD-13517
Decision of the
Dispute Resolution Chamber
passed on 30 May 2024
regarding an employment-related dispute concerning
the player Daniel Joao Santos Candeias
BY:
Lívia SILVA KÄGI (Brazil / Switzerland), Deputy Chairperson
Stella MARIS JUNCOS (Argentina), member
Iñigo RIESTRA (Mexico), member
CLAIMANT:
Daniel Joao Santos Candeias, Portugal
Represented by Jose Gomes Mendes
RESPONDENT:
Alanyaspor, Türkiye
Represented by Sami Dinc
pg. 2
REF. FPSD-13517
I. Facts of the case
1.
On 1 June 2021, the Portuguese player, Daniel Joao Santos Candeias (hereinafter: Claimant
or player) and the Turkish club, Alanyaspor (hereinafter: club or Respondent) concluded an
employment contract (hereinafter: contract) valid as from 15 June 2021 until 31 May 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant the following
monies:
3.
On 31 August 2023, the parties signed an agreement, which read as follows:
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REF. FPSD-13517
4.
On 20 September 2023, the club remitted the first instalment of the agreement, i.e. EUR
50,000.
5.
On 16 October 2023, the Claimant put the Respondent in default and requested payment
of EUR 50,000, corresponding to the second instalment of the agreement, within 20 days.
6.
On 7 November 2023, the Claimant put the Respondent in default and requested payment
of the following monies, within 10 days:
- EUR 252,500, corresponding to remaining instalments of the agreement
- EUR 7,293.15 as interest defined in the agreement;
- EUR 37,875 as contractual penalty.
7.
The club subsequently remitted the following amounts:
- EUR 50,000 on 7 November 2023;
- EUR 50,000 on 23 November 2023.
8.
On 6 December 2023, the Claimant put the Respondent in default and requested payment
of the following monies, within 10 days:
- EUR 152,500, corresponding to remaining instalments of the agreement
- EUR 7,293.15 as interest defined in the agreement;
- EUR 38,968.97 as contractual penalty.
pg. 4
REF. FPSD-13517
II. Proceedings before FIFA
9.
On 28 January 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
10. In his claim, the Claimant requested payment of the following monies:
- EUR 152,500 net, corresponding to remaining instalments of the agreement
- EUR 7,293.15 net as interest defined in the agreement;
- EUR 38,968.97 net as contractual penalty.
The Claimant requested 5% interest p.a. as of the due dates.
11. In this framework, the player argued that the club failed to comply with the agreement and
that he is entitled to the remaining amounts, as well as the interests defined and the
contractual penalty.
b. Position of the Respondent
12. In its reply, the club rejected the claim and argued that it remitted the 2nd instalment of
the agreement within the grace period established in the agreement.
13. The club brought forward that it indeed complied with the time-limit but that due to a
“problem with the bank” the amount was only remitted on 7 November 2023.
14. On account of the above, the club maintained that art. 6 of the agreement was not triggered
since the instalment was paid within the grace period.
c. Replica of the Claimant
15. In his replica, the Claimant reiterated his position.
16. He insisted that the payment was only received after the grace period had expired and that
the club failed to submit any proof that such payment was remitted late due to a problem
with a bank.
17. The player pointed out that the acceleration clause was triggered.
d. Duplica of the Respondent
18. The club did not submit any final comments.
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REF. FPSD-13517
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 28 January 2024 and submitted
for decision on 30 May 2024. Taking into account the wording of art. 34 of the March 2023
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.
20. 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 lit. b) of the
Regulations on the Status and Transfer of Players February 2024 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 player and a club.
21. 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 (March 2023 edition), and
considering that the present claim was lodged on 28 January 2024, the May 2023 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
22. 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
23. 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.
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REF. FPSD-13517
i. Main legal discussion and considerations
24. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for outstanding amounts resulting from the agreement.
25. In this context, the Chamber acknowledged that its task was to decide if the player is
entitled to the claimed amounts or not.
26. The DRC duly noted that according to the player, the club failed to remit the second
instalment of the agreement within the grace period, which triggered the acceleration
clause and the total amount became due.
27. Furthermore, the members of the Chamber acknowledged that the Respondent argued
that the second instalment was paid on time, but due to a problem with the bank only
credited to the Claimant at a later stage. However, the DRC noted that no supporting
evidence was submitted.
28. In this framework, the Chamber wished to emphasize that in the case at hand the
Respondent bore the burden of proving that it indeed complied with the financial terms of
the contract concluded between the parties. Nonetheless, no such evidence was
submitted. The DRC pointed out that the Respondent had more than 20 days (grace period)
to make the payment and cannot benefit from its own tort by arguing that it faced banking
issues.
29. Subsequently, the DRC moved to the penalty clause contained the agreement.
30. In this regard, the Chamber wished to recall the jurisprudence of the Football Tribunal that
penalty clauses, in principle, may be freely entered into by the contractual parties and may
be considered acceptable, in the event that the pertinent written clause meets certain
criteria such as proportionality and reasonableness. Accordingly, it shall be added that in
order to determine as to whether a penalty clause is to be considered acceptable, the
specific circumstances of the relevant case brought before the deciding body shall also be
taken into consideration.
31. The members of the Chamber concluded that, in the specific case at hand, a penalty of 15%
appears to be proportional and reasonable. Therefore, the DRC decided to award the
amount of EUR 37,875 as a penalty to the Claimant.
32. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided to award the player the total amount of the agreement (outstanding
debt plus defined interest) as well as the contractual penalty.
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REF. FPSD-13517
33. In continuation, the Chamber 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.
34. To this end, the Chamber 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.
35. Accordingly, the Chamber 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.
36. The Chamber 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 fourth offense by the club within the last two years, the Chamber decided
to impose a fine on the club in accordance with art. 12bis par. 4 lit. c) of the Regulations.
37. In this connection, the Chamber 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.
ii. Compliance with monetary decisions
38. 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.
39. 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.
40. Therefore, bearing in mind the above, the DRC 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.
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REF. FPSD-13517
41. 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.
42. 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
43. 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.
44. 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.
45. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 9
REF. FPSD-13517
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Daniel Joao Santos Candeias, is partially accepted.
2.
The Respondent, Alanyaspor, must pay to the Claimant the following amount(s):
- EUR 159,793.15 net of taxes in Türkiye as outstanding remuneration plus 5% interest
p.a. as from 6 November 2023 until the date of effective payment;
- EUR 37,875 net of taxes in Türkiye 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.
5.
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.
6.
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.
7.
This decision is rendered without costs.
8.
A fine in the amount of USD 22,500 is imposed on the Respondent, which must be paid
to FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-13517:
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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REF. FPSD-13517
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).
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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