DRC Overdue Payables
Texto da decisão
REF. FPSD-11859
Decision of the
Dispute Resolution Chamber
passed on 26 October 2023
regarding an employment-related dispute concerning
the player Edin Sehic
BY:
Jorge Gutiérrez, Costa Rica
CLAIMANT:
Edin Sehic, Croatia
Represented by Hrvoje Raić and IvanOstojić
RESPONDENT:
Akritas Chlorakas, Cyprus
pg. 2
REF. FPSD-11859
I. Facts of the case
1.
On 23 May 2022, the Croatian player, Edin Sehic (hereinafter: the player or the Claimant),
and the Cypriot club, Akritas Chlorakas (hereinafter: the club or the Respondent), entered
into an employment relationship valid as from 1 June 2022 until 31 May 2023.
2.
In this context, the parties signed the following three documents:
3.
•
A Standard Employment Contract as issued by the Cypriot Football Association
(CFA);
•
a private employment agreement (hereinafter: the Employment Contract); and
•
an additional agreement to the Employment Contract (hereinafter: the Additional
Agreement).
Clauses 1.3, 1.4, and 1.5 of the Employment Contract read inter alia as follows:
“1.3. The Player's gross remuneration shall be as follows:
1.3.1. From 01.06.2022 until 31.05.2022, a monthly gross salary of €468 (416 Euro net)
payable in 10 instalments amounting to 500 Euro each, starting on the 20.07.2022 and
the last payment will be payable on 20.06.2023.
Parties have agreed that any payment according to this agreement can be paid with a
grace period of 30 days.
All taxes payable to the Tax Department, as per the applicable legislation, shall be paid
by the Club.
1.4. Any other gross payments and bonuses shall be payable as follows:
(a) For every goal (excluding the penalty kick) scored by the Player' in an official match
of the first team, the Player shall be entitled to receive a bonus in the net amount of
300 Euro net this payment is to be paid in 30 days after the appropriate result is
reached.
(b) For every assist which was previous to a goal (goal pass) scored by the Player· in an
official match of the first team, the Player shall be entitled to receive a bonus in the
net amount of 300 Euro net this payment is to be paid in 30 days after the
appropriate result is reached.
[...]
pg. 3
REF. FPSD-11859
(e) In case [the club] will stay in the first division according to the result or the season
2022-2023 in the Cyprus football Championship and the Player takes part in no less
than 25 games of the official matches of the season of the Cyprus Championship
(herewith only those matches are to be taken into account in which the football player
stayed on the pitch no less than 45 minutes) the player will be entitled to a bonus
amounting to 15 000 Euro. If the player doesn't take this bonuses because yellow
cards, the club will accept 22 games. If we drop to second division and the player
achieve the goal, he will be entitled to a bonus amounting to 10 000 Euro.
[...]
(i) The football player will be entitled to 200 Euro for each victory of [the club] in the
relegation Playoffs, herewith only those matches are to be taken into consideration
in which the Player stayed on the pitch no less than 45 minutes of the appropriate
match.
(j) The football player will be entitled to 150 Euro for each draw of [the club] in the
relegation Playoffs, herewith only those matches are to be taken into consideration
in which the Player stayed on the pitch no less than 45 minutes of the appropriate
match [...]”.
4.
Furthermore, clause 1 of the Additional Agreement reads as follows:
“The Player will be paid the following incentive premium per the whole period of the
agreement (till the 31.05.2023) amounting to 50 000 Euro payable in 10 equal
instalments (5 000 Euro each), starting on the 20.07.2022 and on the 20th day of each
next month with the last payment on 20/06/2023.
All taxes payable to the Tax Department, as per the applicable legislation, shall be paid
by the Club”.
5.
Clause 2 of the Additional Agreement provided for the circumstances where the incentive
premium owed by the club to the player could be reduced by the club.
6.
On 12 July 2023, the player put the club in default and requested payment within 10 days
of EUR 19,000 corresponding to outstanding salaries and bonuses.
7.
On 17 July 2023, the club replied to the player’s notice. Contextually, the club explained that
all the salaries had already been paid, as well as no bonuses were due for the month of
June. Consequently, it acknowledged owing the player EUR 13,200.
pg. 4
REF. FPSD-11859
8.
On 24 July 2023, the player reached out to the club again, opposed to its calculation, and
insisted on the payment of EUR 19,000 within the following 10 days.
9.
On 2 August 2023, the club replied to the player for the second time. Contextually, the club
reiterated that it had complied with its obligations concerning the salaries, however
rectified its calculations to establish that the outstanding bonuses amounted EUR 13,500.
10. On 7 August 2023, the club paid to the player EUR 1,350.78.
11. On 20 September 2023, the player filed the claim at hand before FIFA for overdue payables.
In doing so, he inter alia referred to art. 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and requested to be awarded the total amount of EUR 17,650,
broken down as follows, quoted verbatim:
“- balance of the bonus in the net amount of EUR 50.00 for the win in the relegation
Playoffs match against Anorthosis Famagusta, which matured on 12/4/2023, and
- bonus of net EUR 300.00 for the assist in the match against Paralimni, which matured
on 17/4/2023, and
- bonus of net EUR 200.00 for the win in the relegation Playoffs match against Ol. Nicosia,
which matured on 18/4/2023, and
- bonus of net EUR 200.00 for the win in the relegation Playoffs match against Nea
Salamis, which matured on 28/4/2023, and
- bonus of net EUR 300.00 for the assist in the match against AEL Limassol, which matured
on 1/5/2023, and
- bonus of net EUR 300.00 for the assist in the match against Anorthosis Famagusta,
which matured on 12/5/2023, and
- bonus of net EUR 200.00 tor the win in the relegation Playoffs match against Anorthosis
Famagusta, which matured on 19/5/2023, and
- bonus of net EUR 10,000.00 for the participation in the more than 22 official games of
the Club's first team, which matured on 27/5/2023, and
- bonus of net EUR 300.00 for the goal scored in the match against Doxa Katokopias,
which matured on 15/6/2023, and
- bonus of net EUR 300.00 for the assist in the match against Anorthosis Famagusta,
which matured on 19/6/2023, and
pg. 5
REF. FPSD-11859
- salary of net EUR 500.00, which matured on 20/6/2023, and additional monthly
remuneration of net EUR 5,000.00, which matured on 20/6/2023;
All along with the pertinent default interest and all relevant taxes, state contributions and
surcharges on top of the above-mentioned net amounts”.
12. In contrast, the club failed to reply to the claim of the player, despite being invited to do so.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 20 September
2023 and submitted for decision on 26 October 2023. 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.
14. 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 par. 1 lit. b) of
the RSTP (May 2023 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 Croatian player and a Cypriot club.
15. Subsequently, the Single 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 RSTP (May 2023 edition) and considering that the present claim was lodged on
20 September 2023, the cited edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
16. 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).
pg. 6
REF. FPSD-11859
c. Merits of the dispute
17. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However,
he emphasised that in the following considerations it 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
18. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains to a claim for overdue payables.
19. On one hand, the Single Judge noted that the player claims to be entitled to his salary and
additional payment that fell due on 20 June 2023, and multiples bonuses.
20. On the other hand, the club, for its part, failed to present its response to the claim of the
player despite having been invited to do so. Consequently, the Single Judge considered that
the club renounced its right to defence. He equally confirmed that he should make its
decision on the basis of the evidence and argumentation presented by the player in line
with art. 21 par. 1 of the Procedural Rules.
21. Against this background, the Single Judge firstly observed that the claim of the player for
salaries is contractually based (cf. the Employment Contract and the Additional
Agreement). As such, he established that it was the burden of the club to demonstrate that
it complied with its financial obligations. However, as the club failed to reply to the claim of
the player, the Single Judge underlined that such burden was evidently not met.
22. Given the above, the Single Judge determined that the player is entitled to the EUR 5,500
sought, corresponding to EUR 500 as salary, plus EUR 5,000 as additional payment.
23. Taking into consideration the player’s request as well as the constant practice of the
Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest at the rate of 5% p.a. on the abovementioned amount as from 21 June 2023 until
the date of effective payment.
24. In continuation, the Single Judge turned to the player’s allegations concerning the bonuses.
In this respect, the Single Judge could not fail to observe that, by means of its
correspondence dated 2 August 2023, the club acknowledged owing the player EUR 13,500
as bonuses, out of which it paid only EUR 1,350.78.
pg. 7
REF. FPSD-11859
25. With the above in mind together with the lack of response to the claim by the club, the
Single Judge decided that the Claimant should be entitled to the undisputed balance (and
acknowledged debt) of EUR 12,149.22 (i.e., EUR 13,500 minus EUR 1,350.78).
26. Notwithstanding the above, the Single Judge was mindful of the request for relief of the
player to have interests awarded on the bonuses as of their due dates. The Single Judge
underlined however that based on the documentation filed by the player, it could not be
precised the exact due dates for each specific bonus. This was in because part of the
evidence filed was unaccompanied by the relevant translations into Spanish, French, or
English, and as such could not be taken into consideration of the basis of art. 13 par. 1 and
3 of the Procedural Rules.
27. Therefore, the Single Judge decided that interest of 5% p.a. should apply on the bonuses
due as from the date of the claim (i.e., 20 September 2023) until the date of effective
payment.
28. Finally, the Single Judge established that the player’s claim to be provided with the tax
certificates should be rejected because it lacks contractual and regulatory basis.
ii. Art. 12bis of the Regulations
29. 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.
30. 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.
31. Accordingly, the Single Judge also 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 were met in the case at hand.
32. 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.
33. 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.
pg. 8
REF. FPSD-11859
iii. Compliance with monetary decisions
34. 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.
35. 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.
36. 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. 24 par. 2, 4, and 7 of the Regulations.
37. 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.
38. 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.
d. Costs
39. 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.
40. 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.
41. Lastly, the Single Judge rejected any other requests for relief made by any of the parties.
pg. 9
REF. FPSD-11859
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Edin Sehic, is partially accepted.
2.
The Respondent, Akritas Chlorakas, must pay to the Claimant the following amount(s):
- EUR 12,149.22 as outstanding remuneration plus 5% interest p.a. as from 20 September
2023 until the date of effective payment.
- EUR 5,500 as outstanding remuneration plus 5% interest p.a. as from 21 June 2023 until
the date of effective payment.
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. 10
REF. FPSD-11859
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
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
pg. 11