DRC Overdue Payables
Texto da decisão
REF FPSD-7585
Decision of the
Dispute Resolution Chamber
passed on 17 November 2022
regarding an employment-related dispute concerning the player
Francisco Leonel Silva Machado
BY:
Omar Ongaro (Italy), Deputy Chairperson
André dos Santos Megale (Brazil), member
Johan van Gaalen (South Africa), member
CLAIMANT:
Francisco Leonel Silva Machado, Portugal
Represented by 14 Sports Law
RESPONDENT:
Giresunspor, Türkiye
Represented by Mr Atahan Sevimli
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I. Facts of the case
1.
On 7 February 2022, the Portuguese player Francisco Leonel Silva Machado (hereinafter
the Claimant or the player) and the Turkish club Giresunspor (hereinafter the Respondent
or the club) concluded employment agreement (hereinafter the Employment Agreement),
valid until 30 June 2022.
2.
In Clause 6 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed upon, inter alia, that the Respondent shall make a total
payment of EUR 380,000 to the Claimant:
“The abovementioned total amount is to be paid to the Player by the Club as the monthly
salary in 6 (six) equal instalments (6 x 63.333,33-Euro) between the period February 2022 July 2022. The monthly salaries are to be paid the last day of the relevant months.”
3.
On 1 August 2022, Claimant sent a default notice to the Respondent, requesting the
payment of the remaining amounts for February 2022 and March 2022, and the full
amounts for April 2022, May 2022, and June 2022 salaries (i.e. EUR 259,999.98) within the
next 10-days, however, to no avail.
II. Proceedings before FIFA
4.
On 23 September 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
5.
The requests for relief of the Claimant were the following:
“(i) Rule that the Respondent has overdue payables towards Mr. Machado for
the purposes of Article 12bis of the RSTP;
(ii) Order the Respondent to immediately pay the total amount of €259.999,98 (Two
Hundred and Fifty-Nine Thousand Nine Hundred and Ninety-Nine Euros and NinetyEight Cents) to the Claimant;
(iii) Order the Respondent to pay 5% interest p.a. for late payment over the amounts due,
as of the day after the aforesaid amounts should have been paid, until the date of effective
payment.
(iv) Impose sporting sanctions upon the Club as considered appropriate.”
6.
The Claimant based its claim on art. 12bis of the Regulations and the legal principle pacta
sunt servanda.
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b. Position of the Respondent
7.
The Respondent rejected the claim of the Claimant.
8.
The Respondent argued that it “had made several payments (Annex-1) in regards to second
half of the 2021/2022 football season’s remunerations (which was claimed by the Player) to
the Claimant and therefore the proposed amount does not reflect the truth.”
9.
In this respect, the Respondent was of the opinion that it “has made payments in the
amount of 120.000,00-Euro + 225.000,00-TL in regards to the Claimant’s remunerations. In
this context, the Respondent completed its financial obligations towards the Claimant.”
c. Final comments of the Claimant
10. The Claimant was requested to comment on the payments allegedly made by the
Respondent.
11. In this respect, the Claimant asserted that, as stipulated in the claim, the Club merely
proved that it performed two monthly payments in the amount of EUR 60.000,00 each
instead of EUR 63.333,33.
12. Following the above, the Claimant pointed out that “(i) the Club explicitly confirms that it
only performed the partial payment of the Player’s salaries of February and March 2022, thus
failing to perform the payment of the salaries corresponding to the months of April 2022, May
2022, June 2022, and July 2022, but also that (ii) the amounts claimed in the Player’s request
for relief did not include the abovementioned payments.”
13. As to the payments made in the Turkish Liras, the Claimant acknowledged that those have
been duly made, yet argued that those payments “match bonuses awarded by the Club, as
provided for under Article 6.4 of the Employment Agreement, and, therefore, such payments
accrue to the monthly salaries to which the Player was entitled to under Article 6.1.”
14. In view of the above, the Claimant reiterated that the amount of EUR 259,999.98 remained
outstanding and that “the match bonuses paid by the Club in Turkish Liras cannot, under any
circumstance, be deducted from the total amount claimed in the Player’s Statement of Claim.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber
or the DRC) analysed whether it was competent to deal with the case at hand. In this
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respect, it took note that the present matter was presented to FIFA on 23 September 2022
and submitted for decision on 17 November 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.
2.
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
Portuguese player and a Turkish club.
3.
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 23 September 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
4.
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
5.
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.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
outstanding payments based on the Employment Agreement, in the amount of
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EUR 259,999.98, corresponding to partial salaries of February 2022 and March 2022, and
the full salaries for April 2022, May 2022, June 2022 and July 2022.
7.
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.
8.
The DRC first noted 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.
9.
Nonetheless, the Chamber noted that the evidence provided by the Respondent (namely
proofs of payment in Turkish Liras) does not prove beyond doubt the payment of the
amounts claimed as outstanding by the Claimant. In this respect, the Chamber recalled
that the Employment Agreement contains salary payments in EUR and, what is more, it
observed that the respective proofs of payment specifically mentioned that the payments
in Turkish Liras were related to the payment of bonuses.
10. Furthermore, the DRC turned its attention to the allegations of the Respondent that it
made payments in the amount of EUR 120,000 to the Claimant. However, the DRC
concluded that these payments were undisputed by the Claimant as well as not requested
in the claim.
11. Consequently, the Chamber concluded that no reasonable justification was presented by
the Respondent for not having complied with the terms of the contract. Bearing in mind
the basic legal principle of pact sunt servanda, which in essence means that agreements
must be respected by the parties in good faith, the Respondent is held liable to pay the
Claimant the outstanding amounts deriving from the contract concluded between the
parties, namely EUR 259,999.98.
ii. Consequences
12. Having stated the above, the members of the Chamber observed that the financial
obligations deemed as outstanding in the present case correspond to the remaining
salaries of February 2022 and March 2022 (2 times EUR 3,333.33), and the full salaries for
April 2022, May 2022, June 2022 and July 2022 (4 times EUR 63,333.33).
13. As a consequence, and in accordance with the general legal principle of pacta sunt
servanda, the DRC decided that the Respondent is liable to pay to the Claimant the
amounts claimed as outstanding under the contract, in total EUR 259,999.98, as detailed
above.
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14. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest over the respective amounts as follows:
-
EUR 3,333.33 plus 5% interest per annum as from 1 March 2022 until the date of
effective payment;
EUR 3,333.33 plus 5% interest per annum as from 1 April 2022 until the date of
effective payment;
EUR 63,333.33 plus 5% interest per annum as from 1 May 2022 until the date of
effective payment;
EUR 63,333.33 plus 5% interest per annum as from 1 June 2022 until the date of
effective payment;
EUR 63,333.33 plus 5% interest per annum as from 1 July 2022 until the date of
effective payment;
EUR 63,333.33 plus 5% interest per annum as from 1 August 2022 until the date of
effective payment.
iii. Art. 12bis of the Regulations
15. In continuation, the DRC referred to art. 12bis 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.
16. 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.
17. Accordingly, the DRC 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 was met in the case at hand.
18. The DRC further established that by virtue of art. 12bis 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 (first being Ref. Nr. 20-01219, second being FPSD-4416
and third being FPSD-4439) by the club within the last two years, the DRC decided to
impose a warning and a fine of USD 22,500 on the club in accordance with art. 12bis of
the Regulations.
19. 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
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iv. Compliance with monetary decisions
20. 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.
21. 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.
22. 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.
23. 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.
24. 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
25. 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.
26. 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.
27. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Francisco Leonel Silva Machado, is accepted.
2.
The Respondent, Giresunspor, has to pay to the Claimant, the following amount(s):
-
EUR 3,333.33 as outstanding remuneration plus 5% interest per annum as from
1 March 2022 until the date of effective payment;
EUR 3,333.33 as outstanding remuneration plus 5% interest per annum as from
1 April 2022 until the date of effective payment;
EUR 63,333.33 as outstanding remuneration plus 5% interest per annum as from
1 May 2022 until the date of effective payment;
EUR 63,333.33 as outstanding remuneration plus 5% interest per annum as from
1 June 2022 until the date of effective payment;
EUR 63,333.33 as outstanding remuneration plus 5% interest per annum as from
1 July 2022 until the date of effective payment;
EUR 63,333.33 as outstanding remuneration plus 5% interest per annum as from
1 August 2022 until the date of effective payment.
3.
A warning shall be imposed on the Respondent.
4.
The Respondent is further ordered to pay a fine in the amount of USD 22,500. The fine is
to be paid within 30 days of notification of the present decision to FIFA to the following
bank account with reference to case nr. FPSD-7585:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
5.
Full payment of the amounts stipulated in point 2. (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
of the amounts stipulated in point 2. (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.
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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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