DRC Overdue Payables
Texto da decisão
REF FPSD-8324
Decision of the
Dispute Resolution Chamber
passed on 13 January 2023
regarding an employment-related dispute concerning the player
Alex Teixeira Santos
BY:
Stefano SARTORI, Italy
CLAIMANT:
Player Alex Teixeira Santos, Brazil
Represented by Tannuri Ribeiro Advogados
RESPONDENT:
Club Besiktas Futbol, Türkiye
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I. Facts of the case
1.
On 4 July 2022, the Brazilian player, Alex Teixeira Santos (hereinafter: the player or the
Claimant) and the Turkish club, Besiktas Futbol (hereinafter: the club or the Respondent)
concluded a mutual termination agreement in connection with the employment
relationship previously maintained between them (hereinafter: the termination
agreement).
2.
According to clause 3 of the termination agreement, the club undertook to pay the player
a total amount of EUR 650,000 net, as follows:
a.
b.
c.
d.
e.
EUR 280,000 net by 15 July 2022;
EUR 92,500 net by 15 August 2022;
EUR 92,500 net by 15 September 2022;
EUR 92,500 net by 15 October 2022; and
EUR 92,500 net by 15 November 2022.
3.
Furthermore, clause 3.3 of the termination agreement read as follows: “in the event that
the club fails to provide the payment of any of the instalments above herein agreed within the
agreed due dates, the overdue amount shall be immediately considered payable. In this case
a fine of 10%, plus default interest will accrue on the gull amount outstanding at the rate of
10% annual rate from the due date until the date of payment”.
4.
On 27 October 2022, the player put the club in default and requested payment of EUR
370,000 net plus 10% interest within 10 days, corresponding to the three last instalments
of the termination agreement.
II. Proceedings before FIFA
5.
6.
On 23 November 2022, the player filed the claim at hand before FIFA. In doing so, he
referred to the contents of the termination agreement and requested to be awarded the
following amounts:
a.
EUR 370,000 net corresponding the four last instalments of the termination
agreement (i.e., EUR 92,500 net each), plus 10% interest p.a. as from the due
dates until the date of payment; and
b.
EUR 37,000 net as contractual penalty “plus default interest”.
In its reply, the club referred to financial difficulties arising inter alia from the COVID-19
pandemic and the depreciation of the national currency. It argued that the payments
could not be performed due to unforeseen reasons and requested FIFA to “make a
reduction” from the value of the termination agreement and the penalty clause.
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
7.
First of all, the Single Judge 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 23 November
2022 and submitted for decision on 13 January 2023. 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.
8.
Subsequently, the Single Judge 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 par. 1 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 Brazilian player
and a Turkish club.
9.
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 Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 23 November 2022, the cited
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
10. 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, the Single Judge
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 the Transfer Matching System (TMS).
c. Merits of the dispute
11. His competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single Judge 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.
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i. Main legal discussion and considerations
12. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the claim at hand pertains to a claim for overdue
payables lodged by the player against the club in connection with a termination
agreement concluded on 4 July 2022.
13. Having analysed the documentation on file, the Single Judge acknowledged that the
parties’ concurred that the last four instalments of the termination agreement remained
outstanding. Furthermore, it was also not disputed that the penalty and interest clause
(clause 3.3 of the termination agreement) was triggered. In contrast, the Single Judge was
also mindful that the club referred to the COVID-19 pandemic and to the related financial
crisis in order to justify its default.
14. With due consideration of the above, the Single Judge recalled that FIFA issued a set of
guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on
the most relevant questions in connection with the regulatory consequences of the
COVID-19 outbreak and identifies solutions for new regulatory matters.
15. To this extent, the Single Judge observed that the FIFA COVID FAQ, in its question no. 1,
establishes that the Bureau of the FIFA Council did not determine that the COVID-19
outbreak was a force majeure situation in any specific country or territory, or that any
specific employment or transfer agreement was impacted by the concept of force
majeure; rather, it provides that whether or not a force majeure situation (or its equivalent)
exists in the country or territory is a matter of law and fact, which must be addressed on
a case-by-case basis vis à vis the relevant laws that are applicable to any specific
employment or transfer agreement.
16. Accordingly, the Single Judge stressed that the club did not file together with its reply any
documentation pertaining to the question of the COVID-19 pandemic and the concept of
force majeure. Therefore, the Single Judge determined that it failed to meet its burden of
proof in accordance with the aforementioned art. 13 par. 5 of the Procedural Rules.
17. Likewise, the Single Judge was firm to determine that financial difficulties per se are not
deemed as a valid reason not to comply with contractual obligations, especially when
considered that the termination agreement sub judice was signed far after the COVID-19
outbreak.
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18. On account of the abovementioned considerations and in line with the general legal
principle of pacta sunt servanda, the Single Judge decided that the club should be liable to
pay the player the outstanding remuneration sought, amounting to EUR 370,000 net.
19. In addition, taking into consideration the player’s request and the clear contractual basis
in this respect, the Single Judge decided to award the player interest at the rate of 10%
p.a. over each of the instalment as from their respective due dates until the date of
effective payment.
20. Finally, the Single Judge decided that the player shall also be entitled to the contractual
penalty of EUR 37,000 net (i.e., 10% over the outstanding amount), which was also deemed
reasonable and proportionate in line with the solid jurisprudence of the Dispute
Resolution Chamber on the topic. Nevertheless, no interest was accrued to the fine in line
with the general legal principle of ne bis in idem.
ii. Article 12bis of the Regulations
21. 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.
22. 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 form more than 30 days, and granted the
club with 10 days to cure such breach of contract.
23. 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. On account of the above and bearing
in mind that this is the second offense by the club within the last two years, the Single
Judge decided to impose a reprimand on the club in accordance with art. 12bis par. 4 lit.
b) of the Regulations.
24. In this connection, the Single Judge wished to highlight 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
25. 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.
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26. 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.
27. Therefore, bearing in mind the above, the Single Judge 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 club in accordance with art. 24 par. 2, 4, and 7 of the Regulations.
28. 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.
29. 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
30. 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.
31. 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.
32. Lastly, the Single Judge rejected 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, Alex Teixeira Santos, is partially accepted.
2.
The Respondent, Besiktas Futbol, has to pay to the Claimant, the following amount(s):
- EUR 92,500 net as outstanding remuneration plus 10% interest p.a. as from 16 August
2022 until the date of effective payment;
- EUR 92,500 net as outstanding remuneration plus 10% interest p.a. as from 16
September 2022 until the date of effective payment;
- EUR 92,500 net as outstanding remuneration plus 10% interest p.a. as from 16
October 2022 until the date of effective payment;
- EUR 92,500 net as outstanding remuneration plus 10% interest p.a. as from 16
November 2022 until the date of effective payment; and
- EUR 37,000 net as contractual penalty.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand 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.
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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).
CONTACT INFORMATION
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