DRC Overdue Payables
Texto da decisão
REF FPSD-7111
Decision of the
Dispute Resolution Chamber
passed on 26 January 2022
regarding an employment-related dispute concerning the player Runar Mar
Sigurjonsson
COMPOSITION:
Clifford J. Hendel (USA & France), Deputy Chairperson
Jorge Gutiérrez (Costa Rica), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Runar Mar Sigurjonsson, Iceland
Represented by Pavel Fedotov
RESPONDENT:
FC CFR 1907 Cluj, Romania
REF FPSD-7111
I. Facts of the case
1.
On 7 February 2021, the Icelandic player, Runar Mar Sigurjonsson (hereinafter: the
Claimant), and the Romanian club, FC CFR 1907 Cluj (hereinafter: the Respondent) signed an
employment contract (hereinafter: contract) valid as from 5 February 2021 until 15 January
2022.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 20,000 (twenty thousand Euro) net per month.
3.
Furthermore, according to para. 1 art. 5 (b) of the contract, the Club undertook to, inter
alia, pay to the Player the following amounts:
−
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EUR 750 net as bonus payment for each official game won at the first team, for a used
substitute player
EUR 500 net per month for accommodation
−
EUR 20,000 net as bonus payment for Club’s win in the Romanian Championship.
4.
On 16 March 2021, the Claimant and the Respondent concluded an additional agreement
(hereinafter: additional agreement) by means of which they amended the duration of the
contract to be valid until 31 May 2022.
5.
As per article II of the additional agreement the Claimant is entitled to receive EUR
179,033.33 net until 1 June 2022 “as the second installment of the established payment.”
6.
Moreover, by means of the article III of the additional agreement, the Respondent was
obliged to pay the penalty equal to EUR 2,000 net for each day of delay of the payment.
7.
On 14 July 2022, the Claimant put the Respondent in default and requested payment of
EUR 330,238.33 plus EUR 2,000 net penalty per day setting a 15 days’ time limit in order to
remedy the default.
II. Proceedings before FIFA
8.
On 18 August 2022, 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
9.
According to the Claimant, the Respondent failed to comply with its contractual financial
obligations.
10. The requests for relief of the Claimant, were the following:
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(a)
The Respondent, has to pay to the Claimant, Mr Rúnar Már Sigurjónsson, the amount of EUR 82,250 as
outstanding payables as follows:
•
EUR 60,000 as the total amount of three-monthly salaries for the period from March 2022
to May 2022;
•
EUR 750 net as bonus payment for a used substitute in relation to the won match against
FC Arges took place 04 April 2022;
•
EUR 1,500 net as the total amount of monthly rent payment for the period from March
2022 to May 2022;
•
EUR 20,000 net as Romanian Championship win bonus.
(b)
The Respondent, has to pay to the Claimant, the penalty in the amount of EUR 2,000 net for each day of
delay as from 2 June 2022 until the date of effective payment of the whole amount mentioned above.
(c)
The Respondent, has to pay to the Claimant, the amount of EUR 179,033.33 net as the second installment
of the payment under Article II of the Additional Agreement.
(d)
The Respondent, has to pay to the Claimant, the penalty in the amount of EUR 2,000 net for each day of
delay as from 2 June 2022 until the date of effective payment of the whole amount mentioned above.
(e)
Sanctions according to article 12bis of the FIFA Regulations on the Status and Transfer of Players is
imposed on the Respondent, Football club CFR 1907 CLUJ.
b. Position of the Respondent
11. According to the Respondent, it paid to the Claimant an amount equivalent to EUR
244,744.33, hence there is no outstanding dues payable to the Claimant.
12. The Respondent mentioned that the bonus for winning the championship should be
calculated on a pro-rata basis.
13. Regarding the penalties as requested, the Respondent indicated that it is excessive and
disproportionate and should be reduced to 18% p.a.
14. The requests for relief of the Respondent, were the following:
(a)
To dismiss the statement of claim filed by the Player against CFR 1907 Cluj as unfounded,
(b)
To dismiss the Player application for the CFR Club to bear penalties for the debts, as it was requested
(c)
and to reduce the amount of penalties to a maximum of 18% year of the main outstanding debt as
excessive and grossly unfair,
(d)
To dismiss the Player request for sanctions the be imposed, considering that we already paid the
outstanding amount.
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c. Additional Comments of the Claimant
15. The Claimant additionally stated the following:
(a)
the Claimant has received payment of outstanding amounts from the Respondent. However, it is
less than the requested amounts in the claim.
(b)
Bonus payment
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“The Player is of the opinion that the wording of the abovementioned article of the Contract is
clear and unequivocal by stating that the Club guarantees a bonus payment for “each time the
Club wins the Romanian Championship”. No other peculiarities of calculation of the Bonus are
stipulated by the article.
By stating that, the Player means that the Respondent’s arguments that the Bonus should be
paid on a pro-rata bonus due to the article 6.1 of the Contract is a direct consequence of free
interpretation by the Club, as far as the neither Article 5.1 does not contain any indications to
the pro-rata payment of the Bonus, nor Article 6.1 does not contain any direct indication that
the Bonus shall be paid on the pro-rata basis.
However, bearing in mind that the Club is an author of the Contract, the Bonus shall be
considered payable in any case due to the principle in dubio contra stipulatorem, according to
which in case of ambiguity, the interpretation unfavorable to the author has to be adopted for
he had it in his power to make his meaning plain.”
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-
(c)
Penalties
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“both parties mutually and voluntarily decided to include the abovementioned penalty clauses
in the Contract and Additional Agreement respectively, and therefore the Club was fully aware
of its existence when it signed them.”
16. In conclusion, the Claimant requested the following relief, taking the aforementioned into
account, the Claimant hereby respectfully asks the FIFA DRC to rule as follows, that the
Respondent
-
-
-
“has to pay to the Claimant, the outstanding amount of EUR 17,039 as for bonus for winning the
Romanian Championship.
has to pay to the Claimant, the penalty in the amount of EUR 2.000 net for each day of delay as
from 2 June 2022 until the date of effective payment of the whole amount mentioned in the item
1 above.
has to pay to the Claimant, the penalty in the amount of EUR 2.000 net for each day of delay of
payment of the second installment under Article II of the Additional Agreement as from 2 June
2022 until the 19 September 2022 in the total amount of EUR 220.000.
Sanctions according to article 12bis of the FIFA Regulations on the Status and Transfer of Players
are imposed on the Respondent, Football club CFR 1907 CLUJ.”
REF FPSD-7111
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 18 August 2022 and submitted
for decision on 26 January 2022. 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.
18. 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 (October 2022 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 from
Iceland and a club from Romania.
19. 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 (October 2022 edition), and
considering that the present claim was lodged on 18 August 2022, the July 2022 edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
20. 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
21. 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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i. Main legal discussion and considerations
22. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact the parties strongly dispute the compliance by the
Respondent of payment of certain financial obligations as per the contract.
23. In this context, the Chamber acknowledged that its task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
24. The Chamber remarked 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.
25. The Chamber noted that the Respondent provided evidence that it complied with payment
of the total amount of EUR 244,744.33 during the proceedings, which was confirmed by the
Claimant however, the Chamber further noted that the Claimant argued that it is less than
the requested amounts as detailed in his claim and that he accordingly disagreed with the
interpretation of the bonus provision as well as arguing that the penalties were
contractually agreed to between the parties.
26. The Chamber firstly recalled the provisions of art. 5 (b) of the contract which mentions that
the Claimant would be entitled to “a net amount of 20.000 euros for each time the Club wins
the Romanian Championship.”
27. In this context the DRC concluded that the aforesaid provision makes no reference to a pro
rata calculation of the bonus in the event that the Respondent wins the Romanian
Championship and that it is clear as contractually agreed between the parties that the
Claimant would be entitled to the amount as stipulated therein.
28. Subsequently, the Chamber focused its attention on the penalty clause detailed in article
III and IV of the additional agreement and noted that the Respondent in its reply argued
the said penalty provisions is excessive and disproportionate.
29. In this context, the Chamber referred to its constant jurisprudence, in accordance with
which penalty clauses may be freely entered into by the parties and may be considered
acceptable, in the event that the pertinent written clause meets certain criteria, such as
proportionality and reasonableness. The Chamber further highlighted 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 it shall be taken into consideration.
30. In the matter at hand, the Chamber remarked that the Claimant and Respondent indeed
agreed to a penalty amount of EUR 2,000 per day for late payment.
REF FPSD-7111
31. In this context, the Chamber observed that the Respondent was 110 days late with
payment of the amount of EUR 244,744.33 corresponding to the second instalment of EUR
179,033.33 as per the additional agreement and outstanding remuneration of EUR 82,250
as per the contract, therefore taking the penalty rate into consideration for the period, 2
June 2022 until 19 September 2022 (110 days), specifically in relation to the second
instalment this would amount to EUR 220,000. Consequently, and considering that the
second instalment due to the Claimant is the amount of EUR 179,033.33, the Chamber
established that the penalty fee of EUR 220,000 in relation thereto is clearly
disproportionate, unreasonable, and excessive.
32. In view of the foregoing, the Chamber considered that as per its well-established
jurisprudence. the maximum interest of 18% p.a. should be applied to the overdue and
outstanding amounts.
ii. Consequences
33. Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent.
34. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the outstanding
amount of EUR 16,539 ( EUR 261,283.33 less EUR 244,744.33) plus 18% interest p.a. as from
2 June 2022 until the date of effective payment and an interest rate of 18% interest p.a. on
the late payment of EUR 244,744.33, for the period between 2 June 2022 until 19 September
2022.
iii. Art. 12bis of the Regulations
35. In continuation, bearing in mind the foregoing considerations, 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. In this respect, the
Chamber confirmed that the Respondent failed to comply with its financial obligations in
line with the contract, without a prima facie justification, and was duly notified of the
contractual breach by the Claimant, who granted the Respondent at least 10 days to cure
its default, to no avail.
36. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. In this context,
the Chamber highlighted that, over the past 2 years under case ref. no. FPSD-6516 the
Respondent had already been found to have delayed a due payment for more than 30 days
without a prima facie contractual basis.
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37. Moreover, the Chamber referred to art. 12bis par. 6 of the Regulations, which establishes
that a repeated offence will be considered as an aggravating circumstance and lead to a
more severe penalty.
38. Bearing in mind the above and taking into account that this is a second offense of the
Respondent in the past two years, the deciding body decided to impose a reprimand on
the Respondent.
iv. Compliance with monetary decisions
39. 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.
40. 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.
41. 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.
42. 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.
43. 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
44. 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,
REF FPSD-7111
or match agent”. Accordingly, the Chamber decided that no procedural costs were to be
imposed on the parties.
45. 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.
46. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
REF FPSD-7111
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Runar Mar Sigurjonsson, is partially accepted.
2.
The Respondent, FC CFR 1907 Cluj, has to pay to the Claimant, the following amount:
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EUR 16,539 as outstanding amount plus 18% interest p.a. as from 2 June 2022 until the
date of effective payment.
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only 18% interest p.a. on the amount of EUR 244,744.33 as from 2 June 2022 until 19
September 2022
3.
Any further claims of the Claimant are rejected.
4.
A reprimand 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
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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).
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