DRC Overdue Payables
Texto da decisão
REF. FPSD-14416
Decision of the
Dispute Resolution Chamber
passed on 1 July 2024
regarding an employment-related dispute concerning
the player Carlos Miguel Tavares de Oliveira
BY:
Michele Colucci (Italy), Single Judge
CLAIMANT:
Carlos Miguel Tavares de Oliveira, Portugal
Represented by José Duarte Reis
RESPONDENT:
AEPS Aiolikos, Greece
pg. 2
REF. FPSD-14416
I. Facts of the case
1.
The parties to this dispute are the Portuguese footballer Carlos Miguel Tavares de Oliveira
(hereinafter: the Player or the Claimant), and the Greek club, AEPS Aiolikos (hereinafter: the Club
or the Respondent).
2.
By document dated 31 March 2023, the Claimant and the Respondent concluded a contract
(hereinafter: the contract), valid as from 31 January 2023 until 31 May 2023.
3.
The preamble to the contract reads as follows:
“In implementation of the exception foreseen in article 1 par. 1 of Appendix B of the RSTP,
permitting the signing of a private agreement between a club and an amateur player, not for the
payment of any remuneration to the latter for providing the services thereof, but solely for
covering the accommodation, sustenance, travelling and insurance expenses thereof and in order
to issue the special permit of residence stipulated in article 17 par. 1 case f of Greek Law
4251/2014 (A.2.7. Athletes - Coaches), the amateur club with name "AEPS AIOLIKOS .." states that
they wish to include TAVARES DE OLIVEIRA CARLOS MIGUEL in their ranks and the other party
stipulates and accepts with the following terms:”
4.
Under the contract, the parties agreed as follows:
“Obligations of the amateur club
The amateur club is obligated to provide to the player all necessary conditions (access to sports
facilities, training material, apparel, etc.) for their preparation in the most comprehensive possible
way and their participation in training sessions and matches.
The amateur club undertakes to complete the registration/transfer procedure of the player
covering the corresponding expenses, as well as any other financial obligation that it may arise
from this agreement and which is not expressly stipulated.
The amateur club is obligated to pay to the player, on the last day of every month, the amount of
THREE THOUSAND (3000.00) Euro, plus 3000€ for bonus relating exclusively to the
accommodation, sustenance, travelling and insurance expenses of the player, which was
determined following a calculation and the joint agreement of the contracting parties. The
aforementioned monthly amount does not constitute, in any way whatsoever, a hidden
employment contract nor does it constitute a remuneration for services provided by the player It
is expressly stipulated that in the event of travelling of the club to an away location the aforestated
accommodation, sustenance and travelling expenses shall be exclusively covered by the club, in
addition to the aforementioned monthly remuneration.”
5.
The penultimate clause of the contract reads as follows:
pg. 3
REF. FPSD-14416
“For any dispute arising from the signature hereof, the execution, interpretation or termination
hereof or as a result hereof in any way whatsoever, the sole competent body is the Players' Status
Committee of HFF (article 21 of the Regulations on the Status and Transfer of Players).”
6.
In accordance with the information available in the FIFA Transfer Matching System (TMS), the
Player was registered with the Club as an amateur without any distinctive issues. Such
registration does not indicate the payment of any amounts to the Player as remuneration.
7.
By correspondence dated 10 January 2024, the Claimant put the Respondent in default, stating
as follows:
“According to the employment contract that I celebrated with your club, valid between 31/01/2023
and 30/05/2023, you should have paid me, on the last day of every month, the amount of 3.000
€ (three thousand euros) plus 3.000 € as bonus for other expenses. However, Despite having fully
fulfilled with my obligations and even stayed in the club beyond the contract duration, to
participate in the champion play-offs, my monthly salary was not paid in full.
This way, the club paid me in different moments a total amount of 1.600 €, which means that
remains overdue and in debt a part of my first salary (1.400 €) and the remaining salaries (9.000
€), being the club obliged to pay a global amount of 10.400 € (ten thousand and four hundred
euros).
As a foreign player, without any other source of income and away from my family, this situation
caused me serious damages and great difficulties in subsistence.
For those reasons, I'm notifying the club to, in a maximum period of 15 (fifteen) days, fully comply
with the payment of the referred overdue salaries.
If there is no payment of the overdue salaries during the 15 days period, I'm informing that is my
intention to start procedures on FIFA competent body, claiming the amounts in debt and asking
for all the legal and sportive consequences associated.”
II. Proceedings before FIFA
8.
On 18 April 2024, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
9.
In his claim, the Player sought the following amounts:
“– Part of February 2023 salary in the amount of 1,400 EUR;
– March 2023 salary, in the amount of 3,000.00 EUR;
– April 2023 salary in the amount of 3,000 EUR;
– May 2023 salary in the amount of 3,000 EUR.”
pg. 4
REF. FPSD-14416
10. The Player filed the following request for relief:
“a) Orders AEPS AIOLIKOS, Greece, to pay to Mr Carlos Miguel Tavares de Oliveira, Portugal, the
salaries in debt,
in the amount of EUR 10,400.00 (ten thousand four hundred Euros).
b) As well as interests at a rate of 5% p.a. as from the day following the due date of each monthly
payment until the date of effective payment.”
11. In its reply, the Respondent held as follows, while not presenting any documentation in support
of its position argumentation.
•
The Player was registered as an amateur player with the Club, not as a professional
player, and the Club, as an amateur entity, was playing in the Greek 3rd Division.
•
The contract executed between the Club and the Player was a private agreement, as
required by the Hellenic Football Federation (HFF) for the purpose of the Player obtaining
a special athletic visa and describing the responsibilities of housing and living
accommodations and expenses of the Player while with the Club. It was not an
employment contract. To this end, said contract clearly states that any disputes should
be resolved through the Players' Status Committee of the HFF (hereinafter: HFF PSC).
•
The Club fulfilled its obligations to the Player by providing accommodation, sustenance,
traveling expenses, insurance coverage, and a car for transportation. The Club claims to
have evidence of payments totalling over EUR 12,000 for the player's expenses during
his stay in Greece.
•
The Club also stated that the Player has not provided any receipts for reimbursement
according to the contract, as all expenses were paid for by the Club.
12. The Club believes that the Player and his legal counsel have misrepresented the facts of the
contract to FIFA. Accordingly, it requested that the claim be rejected.
13. In his rejoinder, the Player raised the following issues:
•
The jurisdiction of the HFF PSC mentioned in the contract is null and void because said
body does not have the competence to deal with financial disputes.
•
In employment-related disputes between a player and a club that have an international
dimension, both parties are entitled to refer the dispute to FIFA’s bodies. Since the Player
is a Portuguese citizen and the Club is registered with the HFF, the dispute has an
international dimension, and FIFA therefore is competent.
•
The contract should be considered an employment agreement based on its content,
which includes the necessary elements such as the contracting parties, duration of the
contract, parties' obligations, and remuneration for services provided.
pg. 5
REF. FPSD-14416
•
According to Article 2 of the Regulations on the Status and Transfer of Players (RSTP), a
professional player is defined as someone who has a written contract with a club and is
paid more for their footballing activity than the expenses they incur. The Player meets
both conditions as the contract was executed, and the Club undertook to pay the Player
a monthly remuneration of EUR 3,000, which exceeds the Player's expenses in his
footballing activity.
•
The fact that the Club considers itself an amateur entity is irrelevant. What matters is
that the Club participates in organized football under the regulations and organization
of the HFF.
14. Based on the above arguments, the Player reiterated his request for relief as outlined in the
statement of claim.
15. The Club did not file any final comments in spite of being awarded the opportunity to do so by
the FIFA general secretariat.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
16. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to as
Single Judge) analysed whether he was competent to deal with the case at hand. In this respect,
he took note that the present matter was presented to FIFA on 18 April 2024 and submitted for
decision on 1 July2024. Taking into account the wording of art. 34 of the March 2023 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 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 RSTP (June 2024 edition), he is in principle competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension between a
Portuguese player and a Greek club.
18. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the HFF PSC, alleging that the latter is competent to deal with any
dispute deriving from the relevant contract.
19. The Single Judge also noted that the Claimant insisted on the competence of FIFA to adjudicate
the present claim, sustaining that the HFF PSC is not an independent arbitration tribunal
guaranteeing fair proceedings and respecting the principle of equal representation of players
and clubs.
20. Taking into account all the above, the Single Judge emphasised that in accordance with art. 22
par. 1 lit. b) of the RSTP, FIFA is, in principle, competent to hear an employment-related dispute
between a club and a player of an international dimension. Nevertheless, the parties may
pg. 6
REF. FPSD-14416
explicitly opt in writing for such dispute to be decided by an independent arbitration tribunal
that has been established at national level within the framework of the association and/or a
collective bargaining agreement. Any such arbitration clause must be included either directly in
the contract or in a collective bargaining agreement applicable on the parties. The independent
national arbitration tribunal must guarantee fair proceedings and respect the principle of equal
representation of players and clubs.
21. In this respect, the Single Judge noted that the Respondent failed to provide any documentary
evidence which could prove that the national arbitration bodies of the HFF meets the
requirements established in art. 22 par. 1 lit. b) of the RSTP, detailed in the FIFA Circular no.
1010 as well as in art. 3 par. 1 of the NDRC Regulations. On account of the above, and referring
to the principle of burden of proof contained in art. 13 par. 5 of the Procedural Rules, the Single
Judge established that the Respondent’s objection towards the competence of FIFA to deal with
the present matter must be rejected, and FIFA is competent, on the basis of art. 22 par. 1 lit. b)
of the Regulations, to consider the present matter as to the substance.
22. For the sake of completeness, the Single Judge outlined that the question as to whether the
contract at the basis of the present dispute is an employment one or not is not important for
the assessment of the admissibility of the matter, not only because art. 22 par. 1 lit. b) RSTP
requires that a dispute be “employment-related”, which is indeed the case, but also as this
concerns the substance of the matter, which will be addressed below.
23. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1
and 2 of the RSTP (June 2024 edition), and considering that the present claim was lodged on 18
April 2024, the February 2024 edition of said regulations (hereinafter: the Regulations) is
applicable to the matter at hand as to the substance.
b. Burden of proof
24. The Single Judge 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, he stressed the wording of art. 13 par. 4 of
the Procedural Rules, pursuant to which he may consider evidence not filed by the parties,
including without limitation the evidence generated by or within TMS.
c. Merits of the dispute
25. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, he started by acknowledging all the
above-mentioned facts as well as the arguments and the documentation on file. However, he
emphasised that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the matter at
hand.
pg. 7
REF. FPSD-14416
i. Main legal discussion and considerations
26. The foregoing having been established, the Single Judge moved to the substance of the matter
and took note of the fact that this is a claim for outstanding remuneration, in which the parties
strongly dispute if the Player was hired as an amateur by the Club.
27. In this context, the Single Judge acknowledged that even if the Club tries to argue that the Player
was an amateur player, and despite the contents of the contract, it remains clear that the player
was entitled to a monthly payment of EUR 3,000 plus bonuses, not as reimbursement of
expenses, but as remuneration. The Single Judge highlighted that this configuration is
mentioned more than once in the contract.
28. In addition, the Single Judge underlined that the wording of the contract seems to indicate that
the bonuses will be paid “relating exclusively to the accommodation, sustenance, travelling and
insurance expenses of the [Claimant]”. It seems therefore that these amounts were agreed as
allowances on top of the payment of remuneration. In fact, the Single Judge was left with the
impression on the basis of the documentation on file that the Club might have tried to disguise
the Player’s hiring of professional by registering him as an amateur.
29. Be it as it may, the Single Judge considered in any event on the basis of all evidence and
submissions, that the elements provided by art. 2 par. 2 of the Regulations are met, and the
Player has demonstrated his professional status, especially because his expenses would be
reimbursed by way of the bonus payments.
30. For the sake of completeness, the Single Judge also remarked that the Club did not file any
evidence in support of its position, nor responded to the Player’s default notice, nor filed its
final comments, and accordingly its position remained significantly unsubstantiated.
31. As such, the Single Judge concluded that the Player was indeed a professional and the reasons
invoked by the Respondent for non-payment are not valid. Thus, the Respondent must pay the
amount claimed to the Claimant.
32. The Single Judge observed that the outstanding remuneration at the time of expiry of the
contract, coupled with the specific requests for relief of the Player, are equivalent to the exact
amounts outlined in the statement of claim.
33. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Respondent is liable to pay to the Claimant the amounts which
were outstanding under the contract for a total of EUR 10,400.
34. In addition, taking into consideration the Claimant’s request as well as the constant practice of
the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest at
the rate of 5% p.a. on the outstanding amounts as from their respective due dates until the
date of effective payment.
pg. 8
REF. FPSD-14416
ii. Article 12bis of the Regulations
35. In continuation, the Single Judge 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.
36. To this end, the Single Judge 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.
37. Accordingly, the Single Judge 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.
38. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Club. Because of the above and bearing in mind that
this is the first offense by the Club within the last two years, the Single Judge decided to impose
a warning on the Club in accordance with art. 12bis par. 4 lit. a) of the Regulations.
39. In this connection, the Single Judge 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.
iii. Compliance with monetary decisions
40. Finally, taking into account the applicable Regulations, the Single Judge 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.
41. In this regard, the Single Judge 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.
42. Therefore, bearing in mind the above, the Single Judge 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.
43. 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.
pg. 9
REF. FPSD-14416
44. The Single Judge 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
45. The Single Judge 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 Single Judge decided that no procedural costs were to be
imposed on the parties.
46. Likewise, and for the sake of completeness, the Single Judge recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
47. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 10
REF. FPSD-14416
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal is competent to hear the claim of the Claimant, Carlos Miguel Tavares de
Oliveira.
2.
The claim of the Claimant is accepted.
3.
The Respondent, AEPS Aiolikos, must pay to the Claimant the following amount(s):
a. EUR 1,400 as outstanding remuneration plus 5% interest p.a. as from 1 March 2023 until
the date of effective payment.
b. EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 April 2023 until the
date of effective payment;
c. EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2023 until the
date of effective payment;
d. EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 31 May 2023 until the
date of effective payment.
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 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
pg. 11
REF. FPSD-14416
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 Governing the Football
Tribunal).
CONTACT INFORMATION
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12