DRC Overdue Payables
Texto da decisão
REF FPSD-4147
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Josef Souza
Dias
COMPOSITION:
Frans de Weger (Netherlands), Chairperson
Elvis Chetty (Seychelles), member
Stijn Boeykens (Belgium), member
CLAIMANT:
Josef Souza Dias, Brazil
Represented by Gustavo Koch Pinheiro
RESPONDENT:
Al Ahli, Saudi Arabia
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I.
Facts of the case
1.
On 11 March 2021, a decision was passed under case ref. nr. 20-01300 in a matter between
the Brazilian player, Josef Souza Dias (hereinafter: “the Claimant”) and the Saudi Arabian
club, Al Ahli (hereinafter: “the Respondent”), relating to a request for outstanding
remuneration and compensation for breach of contract based on an employment contract
concluded between the Claimant and the Respondent on 23 August 2018.
2.
The claim of the Claimant was accepted, and the FIFA DRC decided that the Respondent,
had to pay to the Claimant, the total amount of EUR 4,700,000, corresponding to the
following:
“ (a) EUR 250,000 as outstanding remuneration plus 5% interest p.a. as from 30 August
2020 until the date of effective payment.
(b) EUR 4,450,000 as compensation for breach of contract without just cause plus 5%
interest p.a. as from 13 September 2020 until the date of effective payment.”
3.
On 10 June 2021, in the said matter an appeal was lodged before CAS, which appeal was
withdrawn on 31 August 2021.
4.
In the meantime, on 2 June 2021, the Claimant and the Respondent concluded a settlement
agreement by means of which the Respondent agreed to pay to the Claimant the amount
of EUR 3,850,000 by 15 July 2021.
5.
Clause 3 of the settlement agreement stipulated the following:
“If the Club fails to pay the sum agreed on paragraph 1 within the time limit, the sums
hereby agreed will be considered null and void, allowing the Player to enforce the FIFA award
in its original amount, as referred on recital "b" and the club resume its procedure before
CAS”
6.
Recital (b) of the settlement agreement mentioned the following:
“On March 15 2021, FIFA Dispute Resolution Chamber accepted the claim, ordering the
Club to pay the Player EUR 4.750.000 (four million, seven hundred and fifty million Euros),
plus 5% interest p.a. as from September 2020.”
7.
On 17 July 2021, the Claimant sent a letter with the required bank instructions to the
Respondent, however the Respondent again failed to comply with its financial obligations.
8.
On 10 October 2021, the Claimant sent a default notice to the Respondent requesting
payment of the total amount of EUR 3,850,000, granting it a deadline of 10 days to comply
with payment thereof, however to no avail.
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II. Proceedings before FIFA
9.
On 29 October 2021, 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.
According to the Claimant, the settlement agreement “was conditioned to a single payment
until 15 July, should the club fail to pay on time, it would be null and void, remaining the
DRC award amount as due.”
11.
The requests for relief of the Claimant, were that the FIFA DRC:
(a)
declare the settlement agreement null and void, as established in clause 3 thereof;
(b)
establish that the Respondent is liable to pay to the Claimant EUR 4,700,000, plus 5%
interest p.a. as from September 2020; and
(c)
apply disciplinary sanctions to the Respondent, as defined in art. 12bis of FIFA’s RSTP,
considering the Club repeated offenses.
12.
The Claimant mentioned that the settlement agreement generated only a suspensive and
conditional clause to the FIFA decision case ref.20-01300, and did not constitute a new
obligation, however the FIFA administration indicated the following:
“In this respect, taken into account that (a) a decision has been passed by the DRC on 10
May 2021, (b) an appeal has been lodged before CAS on 10 June 2021, which appeal
consequently was withdrawn on 31 August 2021 and (c) that the parties had signed a
settlement agreement on 22 June 2021, which validity was conditional upon the payment
of a specific payment once, please be informed that your request to apply sporting sanctions
on the Respondent cannot be applied right now, in view of the FIFA Circular 1628, issued
on 9 May 2018.”
b.
Position of the Respondent
13.
In its reply to the claim, the Respondent mentioned that it is in a critical financial situation
due to the impact of the COVID-19 pandemic, hence the delay of payment to the Claimant.
14.
In this context the Respondent requested that the Claimant consider “a new reasonable
schedule that can be respected by the Respondent namely to postpone payments of 2
instalments starting since 31 December 2021.”
15.
In conclusion, the Respondent requested that the FIFA's DRC accept the proposal of the
Respondent to settle the outstanding amount due to the Claimant; and that this claim
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should not be treated under the article 12 bis as the Claimant did not comply with the
necessary requirements.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16.
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 29 October 2021 and submitted for
decision on 24 March 2022. 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.
17.
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 (March 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 Brazilian player and
a Saudi Arabian club.
18.
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 2022 edition) and
considering that the present claim was lodged on 29 October 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
19.
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
20.
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
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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
21.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the parties strongly dispute whether the non-compliance with
the settlement agreement can be upheld against the Respondent, due to the financial
difficulties it experienced in view of the outbreak of the COVID-19 pandemic.
22.
In this context, the Chamber acknowledged that it its task was to determine whether or not
in the matter at hand the Respondent is liable to pay the amounts stipulated in the
settlement agreement to the Claimant.
23.
In this respect, the members of the Chamber noted that the Respondent failed to pay any
amounts to the Claimant as agreed upon in the settlement agreement. The Chamber further
observed that the Respondent is not contesting the fact that the outstanding amounts as
per the settlement agreement are due to the Claimant, it argued that in view of its financial
situation as a result of the outbreak of the COVID-19 pandemic, it preferred to conclude an
amicable settlement with the Claimant.
24.
The Chamber remarked that in its submissions, the Respondent stated that the COVID-19
outbreak had made it difficult to make the payments requested by the Claimant. In this
respect, the DRC highlighted that the Respondent had not invoked such circumstances to
the Claimant, as it had failed to reply to the default notice sent by the Claimant.
25.
In this context, the DRC mentioned that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in other
words, the reasons brought forward by the Respondent in its defence do not exempt the
Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
26.
In view of all the above, bearing in mind its extensive jurisprudence according to which
financial difficulties cannot be held as a valid reason to the non-payment of contractually
agreed payments, the DRC decided to reject the argumentation put forward by the
Respondent in its defence.
ii. Consequences
27.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of the settlement agreement
committed by the Respondent.
28.
The members of the Chamber remarked that due to the failure by the Respondent to pay
the amount of EUR 3,850,000 as per clause 1 of the settlement agreement, clause 3 in
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combination with recital b) of the settlement agreement came into force, hence the
Chamber concluded that instead of an amount of EUR 3,850,000, the Claimant could claim
an amount of EUR 4,700,000.
29.
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 amount of
EUR 4,700,000 as per clause 3 in combination with recital b) of the settlement agreement.
30.
In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from 14 September 2020 until the date of
effective payment.
31.
In addition, the Claimant established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
32.
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.
33.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. In this context, the DRC highlighted
that, over the past 2 years under case ref. nos. FPSD-2369; FPSD-2384, FPSD-2445, FPSD2432, FPSD-2434, FPSD-2777 and FPSD-4576, the Respondent had already been found to
have delayed a due payment for more than 30 days without a prima facie contractual basis.
34.
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.
35.
Bearing in mind the above, the deciding body decided to impose a fine on the Respondent
in accordance with art. 12bis par. 4 lit. c) of the Regulations. On account of the above and
taking into consideration the total amount of overdue payables due, the Chamber regarded
a fine amounting to USD 105,000 as appropriate and hence decided to impose said fine on
the Respondent.
iii. Compliance with monetary decisions
36.
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.
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37.
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.
38.
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.
39.
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.
40.
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
41.
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.
42.
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.
43.
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, Josef Souza Dias, is accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant, the following amount:
- EUR 4,700,000 as outstanding amount, plus 5% interest p.a. as from 14 September
2020 until the date of effective payment.
▪
3.
A fine in the amount of USD 105,000 is imposed on the Respondent. (cf. note relating to
the payment of the fine)
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 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.
6. 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.
7. 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 RELATING TO THE PAYMENT OF THE FINE
If applicable, payments to FIFA should be made by wire transfer in US dollars (USD) to the following
bank account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
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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