Labour Disputes
Texto da decisão
REF FPSD-3508
Decision of the
Dispute Resolution Chamber
passed on 24 February 2022
regarding an employment-related dispute concerning the player Claudio Paul Spinelli
BY:
Clifford J. HENDEL (USA), Chairperson
Gonzalo DE MEDINILLA (Spain), member
Jorge GUTIERREZ (Costa Rica), member
CLAIMANT:
Claudio Paul Spinelli, Argentina
RESPONDENT:
Genoa Cricket FC, Italy
REF FPSD-3508
I Facts
1. On 16 July 2018, the player Claudio Paul Spinelli and Genoa Cricket FC concluded an employment
contract valid until 30 June 2022.
2. On 30 September 2020, the parties concluded a “private deed” with the following conditions:
“(C) la Compañía, con el consentimiento expreso del Jugador, ha llegado a un acuerdo con Football
Club Koper,
Eslovenia, para la Transferencia Temporal del Contrato de Trabajo Deportivo
(…)
“2.2 A frente de esto, la Sociedad pagará al Jugador, en consideración de la Relación actual, la
cantidad bruta con todo incluido de 175.000,00 euros (ciento setenta y cinco mil euros / 00) como
contraprestación por la terminación en sí. Esta cantidad no estará sujeta a cotizaciones a la seguridad
social y estará sujeta a impuestos separados de conformidad con el art. 17 párrafo 1, letra a) y del art.
19, párrafo 2 del Decreto Presidencial 22 de diciembre de 1986
(,,,)
3.1 El monto a que se refiere el párrafo 2.2 se abonará mediante transferencia bancaria a la cuenta
corriente del jugador, conocida por la Sociedad, en el n. 10 (nueve) devengos de la misma cantidad
adeudados al final de cada mes a partir del 30/10/2020 hasta el 30/07/2021; no se aplicarán intereses
sobre los importes así diferidos.”
Free translation into English:
"(C) the Company, with the express consent of the Player, has entered into an agreement with
Football Club Koper,
Slovenia, for the Temporary Transfer of the Player's Sporting Employment Contract
(...)
"2.2 In consideration of this, the Company shall pay the Player, in consideration of the current
Relationship, the all-inclusive gross amount of €175,000.00 (one hundred and seventy-five thousand
euros / 00) as consideration for the termination itself. This amount shall not be subject to social
security contributions and shall be subject to separate taxation in accordance with in accordance with
Art. 17 para. 1 letter a) and Art. 19 para. 2 of the Presidential Decree of 22 December 1986 and Art.
19 para. 2 of the Presidential Decree of 22 December 1986.
(,,,)
3.1 The amount referred to in paragraph 2.2 shall be paid by bank transfer to the player's current
account, known to the Company, in n. 10 (nine) instalments of the same amount due at the end of
each month from 30/10/2020 until 30/07/2021; no interest shall be charged on the amounts thus
deferred.”
3. On 6 August 2021, the player sent a default notice with the following contents:
“With this letter we are formally claiming and reporting the existence of the following overdue by the
club;
OVERDUE PAYABLES: Unpaid amounts arising from the -Scrittura Private' dated 30.09.2020 in the gross
amount of Euro 97.065.- plus interest a 5% annual rate up to this date. according to the following
details
According to the aforementioned agreement the club committed to pay me an amount of Euro
175.000.• as incentive for the acceptance of the loan agreement (clause 2 2)
(…)
REF FPSD-3508
Up to this dale the club only paid Euro 77 935 and also did not present any document justifying the
payment of the correspondent taxes Therefore the overdue gross amount up to this date, due for more
than 30 days. is Euro 97-065 (Euro 175(000 - Euro 77.9351
WARNING: Accordingly. I formally summon you to immediately cancel the debt you have towards me
in the next 10 ten natural days. giving me proof of the payment and/or the correspondent tax certificates
up to the agreed amount of Euro 175.000.
Otherwise. I will have no choice but to file a claim before FIFA (art.12bis of the RSTP).
(…)”
4. On 1 September 2021, Claudio Paul Spinelli lodged a claim before FIFA for outstanding remuneration,
and requested the payment of EUR 97,065, plus 5% interest p.a. as from the due dates.
5. In its reply to the claim, the Respondent explained that it paid 8 of the 10 instalment of the player (i.e.
8*17,500), and that consequently the last two instalments, for EUR 35,000, remain due.
6. The club further considered that the equivalent net amount of each instalment is EUR 9,975.
7. The club provided a series of payment slips. A sample is copied below:
REPLICA OF THE CLAIMANT
8. In his replica, the player argued that the club did not provide any evidence of having paid taxes to the
Italian authorities.
9. Consequently, the player stated that the amount of EUR 35,000 is due, as well as the unproperly paid
8 instalments for a total amount of EUR 60,200 (8*7,525).
10. As a result, the player requested the payment of EUR 95,200.
FINAL COMMENTS FROM THE RESPONDENT
11. As final comments, the club explained that the payment of withholding tax was agreed in art. 2.2 of
the agreement.
12. In this respect, the club explained that “according to the 10 payslips enclosed, after the deduction of
IRPEF, the net amount due to the Player per month is €9,975. Therefore, the total net amount due to
the Player under the Private Agreement is €99, 750 (i.e. 10 instalments of €9,975).
13. As a result, Genoa stated that it paid all due amounts to the player.
14. The club further stated that “if FIFA wishes to be provided with evidence of the total payment to the
Italian tax authorities for all of its employees, we are of course happy to provide this on a confidential
basis.”
CLARIFICATION CONCERNING DUE AMOUNTS
15. The player was invited to provide a further clarification as to the claimed amount and noted that, since
the agreement stipulated an amount of EUR 175,000 and the club paid EUR 99,750, the remaining
amount of EUR 75,250 remains due, and requested 5% interest p.a. as from 31 July 2021.
REF FPSD-3508
II 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 Single Judge) 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 01 September 2021 and submitted for decision on 24
February 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.
2. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 Regulations on the Status and Transfer of Players (August 2021 edition), itis competent
to deal with the matter at stake, which concerns an employment-related dispute with an
international dimension between an Argentinean player and an Italian club.
3. 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 Regulations on the Status and Transfer of Players (August 2021 edition), and considering
that the present claim was lodged on 01 September 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
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
REF FPSD-3508
6. First of all, the Chamber noted that, on 16 July 2018, the player Claudio Paul Spinelli and Genoa
Cricket FC concluded an employment contract valid until 30 June 2022.
7. Thereafter, the Chamber observed that, on 30 September 2020, the parties concluded a “private
deed” according to which, inter alia, the club committed to pay the amount of EUR 175,000 to
the player.
8. The Chamber then took note of the player’s claim, according to which he lodged a claim before
FIFA for outstanding remuneration and requested the payment of EUR 97,065, arising from said
document.
9. On the other hand, the Chamber observed that the Respondent explained that it paid 8 of the
10 instalment of the player (i.e. 8*17,500), and that consequently the last two instalments, for
EUR 35,000, remain due.
10. The Chamber then observed that the player ultimately explained that the remaining amount of
EUR 75,250 remains due.
11. In view of the above, the Chamber understood that the main legal issue at stake is to determine
the exact amount due by the club to the player.
12. In this respect, the Chamber analysed the evidence provided by the club in support of its
allegations of partial payments, and noted that it only submitted documentation in Italian,
without providing any translation.
13. In this respect, the Chamber referred to art. 13 of the Procedural Rules, according to which “1.
Any submission to a chamber shall be made in an official FIFA language. Any submission to a chamber
not made in an official FIFA language will be disregarded”
14. In view of the above, the Chamber considered that it could not take into account the
documentation provided in this regard by the club, and therefore could only assume that the
amount of EUR 75,250, as ultimately claimed by the player, remains due.
15. Consequently, in strict application of the principle of pacta sunt servanda, the DRC established that
the Respondent has to pay to the Claimant, the total outstanding amount of EUR 75,250, as detailed
above.
16. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the DRC decided to award 5% interest p.a. over said amount as from 31 July 2021.
REF FPSD-3508
ii.
Compliance with monetary decisions
17. 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.
18. In this regard, the Chamber 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.
19. Therefore, bearing in mind the above, the Chamber 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 creditor, 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.
20. The Chamber 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
21. 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.
REF FPSD-3508
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Claudio Paul Spinelli, is partially accepted.
2.
The Respondent, Genoa Cricket FC, has to pay to the Claimant, the amount of EUR 75,250 as
outstanding remuneration plus 5% interest p.a. as from 31 July 2021 until the date of effective
payment.
3.
Any further claims of the Claimant are rejected.
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 (August 2021
edition), if full payment (including all applicable interest) is not made within 45 days of
notification of this decision, the following consequences shall apply:
1.
2.
6.
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.
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.
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.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-3508
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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