DRC Overdue Payables
Texto da decisão
REF FPSD-3658
Decision of the
Dispute Resolution Chamber
passed on 28 October 2021
regarding an employment-related dispute concerning the player Anderson
Souza Conceição
COMPOSITION:
Frans de Weger (the Netherlands), Chairperson
Johan van Gaalen (South Africa), Member
Dana Mohamed Al-Noaimi (Qatar), Member
CLAIMANT:
Anderson Souza Conceição, Brazil
Represented by Gustavo Koch Pinheiro
RESPONDENT:
Guangzhou FC, China PR
Represented by Giandonato Marino and Tomas Pereda
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REF FPSD-3658
I.
Facts of the case
1.
On 30 April 2021, the Brazilian player, Mr Anderson Souza Conceição (hereinafter: the player
or the Claimant), and the Chinese club, Guangzhou FC (hereinafter: the club or the
Respondent) concluded a settlement agreement related to the employment relationship
previously maintained between them (hereinafter: the settlement agreement).
2.
In accordance with clauses 1.1 and 1.3 of the settlement agreement, the club undertook to
pay the player the following amounts:
a. CNY 21,889,250 as “subsidies 2019” by 31 May 2021; and
b. EUR 562,500 equivalent to one monthly salary by 31 May 2021.
3.
On 17 June 2021, the player sent the club an email informing his new bank account in Brazil
for payment of the amounts due under the settlement agreement. Moreover, the player
stated that “no charge, interest or additional fee is due until 20 June 2021”.
4.
On 17 July 2021, the player acknowledged that no payment was delivered by the club within
the deadline previously granted. Therefore, he requested the club to cure its breach within
the following 10 days.
5.
On 23 July 2021, the club replied to the player’s correspondence and wrote, in verbis: “We
are working on it. Thanks for the understanding”.
6.
On 26 July 2021, the player sent the club a notice requesting payment of EUR 3,425,117,
being EUR 2,812,000 (i.e. equivalent to CYN 21,899,250), plus EUR 562,500, plus the
relevant interest at a rate of 18% p.a..
7.
On 11 August 2021, the player sent another notice to the club requesting payment of EUR
3,461,040, being EUR 2,812,000 (i.e. equivalent to CYN 21,899,250), plus EUR 562,500, plus
the relevant interest at a rate of 18% p.a..
II. Proceedings before FIFA
8.
On 13 September 2021, the player filed the claim at hand before FIFA.
9.
According to the player, he requested the club to “freeze” the payment until he had a new
bank account in Brazil and then granted an additional deadline until 20 June 2021.
Nevertheless, the player pointed out that the club failed to deliver the payments at all.
10. Therefore, he requested payment of CNY 21,889,250 and EUR 562,500, plus 18% interest
p.a. as from 20 June 2021 until the date of effective payment. Likewise, he claimed sporting
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sanctions to be imposed on the club in line with article 12bis of the FIFA Regulations on the
Status and Transfer of Players (RSTP).
11. In its reply, the club held that article 12bis of the RSTP should not be applicable to the case
at hand because the player had failed to grant it with an appropriate deadline to cure the
breach.
12. Furthermore, the club maintained that the parties did not establish any penalty in case it
would not fulfil its terms of the settlement agreement. Likewise, the club stressed that the
interest rate should be limited to 5% p.a. instead of 18% p.a. as claimed by the player.
13. Finally, the club requested all costs of the proceeding to be borne by the player.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. 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 13 September 2021 and submitted for
decision on 28 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.
15. 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 (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 a Brazilian player and
a Chinese club.
16. 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 (August 2021 edition), and
considering that the present claim was lodged on 13 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
17. 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
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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
18. 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
19. The foregoing having been established, the Chamber moved to the substance of the matter
and took note of the fact that the case at hand pertains a claim for outstanding remuneration
only, in connection with a settlement agreement concluded between the parties on 30 April
2021.
20. In this context, the DRC acknowledged that it was not disputed that the amounts claimed by
the player under clauses 1.1 and 1.3 of the settlement agreement were due by the club and
remained outstanding.
21. In light of the above and in line with the general legal principle of pacta sunt servanda, the
DRC unanimously decided that the club should be liable to pay the player the outstanding
remuneration sought (i.e. CNY 21,889,250 and EUR 562,500).
22. In continuation, the members of the Chamber tuned their attention to the club’s
argumentation regarding the interest rate that should be applicable to the case at hand.
Accordingly, the DRC went on analysing the documentation on file – and especially to the
wording of the settlement agreement – and noted that the parties did not stipulate any
specific penalty in case of delay by the club to comply with its financial obligations. On the
other hand, the Chamber was observant that parties did only agreed upon penalties
applicable in case of the player’s default, which are not relevant to the case at hand.
23. Based on the foregoing, the DRC referred to its long-standing jurisprudence and concluded
that the player should be awarded the standard interest of 5% p.a. as from the date of default
(i.e. 21 June 2021) until the date of effective payment.
ii. Art. 12bis of the Regulations
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24. Having established the above, the DRC 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.
25. To this end and conversely to the club’s argumentation, the DRC 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.
26. Accordingly, the DRC 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.
27. The DRC 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 first offense by the club within the last two years, the DRC decided to impose
a warning on the club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
28. In this connection, the DRC 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.
iii. Compliance with monetary decisions
29. 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.
30. 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.
31. Therefore, bearing in mind the above, the DRC 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 Respondent in accordance
with art. 24 par. 2, 4, and 7 of the Regulations.
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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 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
34. 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.
35. 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.
36. 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, Anderson Souza Conceição, is partially accepted.
2.
The Respondent, Guangzhou FC, has to pay to the Claimant, the following amounts:
-
CNY 21,889,250 as outstanding remuneration plus 5% interest p.a. as from 21 June
2021until the date of effective payment; and
-
EUR 562,500 as outstanding amount plus 5% interest p.a. as from 21 June 2021 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 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.
7. The consequences shall only be enforced at the request of the Claimant in accordance
with article 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).
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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