Dispute Resolution Chamber
Texto da decisão
REF FPSD-1967
Decision of the
Dispute Resolution Chamber
passed on 6 May 2021
regarding an employment-related dispute concerning the player Dusko Tosic
COMPOSITION:
Omar Ongaro (Italy), Deputy Chairman
Angela Collins (Australia), member
Stefano La Porta (Italy), member
CLAIMANT:
Dusko Tosic, Serbia
RESPONDENT:
Guangzhou R&F, China PR
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REF FPSD-1967
I.
FACTS
1.
On 1 July 2018, the player Dusko Tosic (hereinafter, "the Claimant") and Guangzhou R&F
Football Club (hereinafter, "the Respondent") entered into an employment contract valid as
from the date of signature until 31 December 2020
2.
According to Article 6 par. 1 of the Contract (‘Salary and Bonuses’), the Respondent committed
to pay to the Claimant EUR 200,000 net every month from 1 July 2018 to 31 December 2020.
3.
Moreover, art. 6 of the contract stipulated the following:
“6. Party A and Party B agree that during the validity period of this contract, Party A shall pay
Party B royalties for the above use of party B's portrait rights. Party A will pay Party B royalties
as follows:
(1) Party A shall pay Party B 1.550.000 (net) (Euros) as portrait royalties of 2018 second half on
or before 31 July 2018;
(2) Party A shall pay Party B 1.550.000 (net) (Euros) as portrait royalties of 2019 first half on or
before 30 March 2019;
(3) Party A shall pay Party B 1.550.000 (net) (Euros) as portrait royalties of2019 second halfon or
before 30 September 2019;
(4) Party A shall pay Party B 1.550.000 (net) (Euros) as portrait royalties of2020 first half on or
before 30 March 2020;
(5) Party A shall pay Party B 1.550.000 (net) (Euros) as portrait royalties of2020 second half on
or before 30 September 2020;”
4.
On 18 February 2021, the legal representative of the player, requesting the payment, within 10
days following:
“In accordance with Article 5 par. 6 of the Contract (‘Commercial Right’), your Club committed
to pay the Player the following amounts in accordance with the following payment schedule:
(1)EUR 1,550,000 net on or before 31 July 2018;
(2)EUR 1,550,000 net on or before 30 March 2019;
(3)EUR 1,550,000 net on or before 30 September 2019;
(4)EUR 1,550,000 net on or before 30 March 2020;
(5)EUR 1,550,000 net on or before 30 September 2020.
The Player has informed us that apart from the royalties for 2018, he received only partial
payment of the royalties relating to the first half of 2019 and partial payment of the royalties
relating to the second half 2019. Thus, on 23 January 2020 the Player received EUR 310,000,
partially covering the instalment due on 30 March 2019 and on 15 September 2020 he received
the amount of EUR 220,867.94, partially covering the instalment of September 2019.
However, the rest of the payments of royalties for 2019 and 2020 remain unpaid to date.”
6. On 9 March 2021, the Claimant lodged a claim for outstanding remuneration and requested
the payment of the following amounts as specified in art. 6 of the contract:
a.EUR 1,240,000 net plus 5% interest p.a. as from 31 March 2019;
b.EUR 1,329,132.06 net plus 5% interest p.a. as from 1 October 2019;
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REF FPSD-1967
c.EUR 1,550,000 net plus 5% interest p.a. as from 31 March 2020;
d.EUR 1,550,000 net plus 5% interest p.a. as from 1 October 2020
7.
In relation to the agreed payments, the Claimant referred to the “the long-standing FIFA and CAS
jurisprudence, whereby it is established that whenever the matter concerns the image rights
payments, e.g. the royalty payments like in the case at hand, FIFA Dispute Resolution Chamber
shall be competent to consider the matter when such payments are inherent to the underlying
employment relationship”
8.
In its reply to the claim, the Club explained that it “has been actively communicating with the
player on the issue”, but argued the following:
“Since the player Tosic had signed an after-tax employment contract with our club, meaning all
the income tax generated out of the player's contract were paid by our club, so naturally the
abovementioned tax financial subsidy shall belong be returned to the club. But the policy
stipulates that the such tax subsidy shall only be remitted to the player's personal account. Based
on trust in the player, the club had applied for the 2019 tax subsidy before signing an agreement
with the player Tosic, in which the subsidy had already been remitted to the player's personal
account.”
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REF FPSD-1967
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
1. 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.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural
Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution
Chamber is competent to deal with matters which concern employment-related disputes
with an international dimension between players and clubs, such as the present one
3. In continuation, the Dispute Resolution Chamber analysed which edition of the
Regulations of the Status and Transfer of Players should be applicable to the present
matter. In this respect, the Dispute Resolution Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and
considering the date when the claim was lodged, the January 2021 edition of the
aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at
hand.
4. With the above having been established, the Dispute Resolution Chamber entered into
the substance of the matter. In doing so, it started to acknowledge the facts of the case
as well as the documents contained in the file. However, the Dispute Resolution Chamber
emphasized that in the following considerations it will refer only to facts, arguments and
documentary evidence which it considered pertinent for the assessment of the matter at
hand.
5. In this respect, the Chamber noted that, on 1 July 2018, the parties concluded an
employment contract, by means of which the player would be entitled, inter alia, to a
series of payments referred to as “royalties” for “portrait rights”.
6. In view of the above, the Chamber also had to verify whether, for formal reasons, it was
competent to deal with this specific component or not. In fact it remains that this part of
the claim could possibly not be considered due to the Chamber lacking competence to
deal with disputes related to image rights
7. On this note, the Chamber noted that if there are separate agreements, the DRC tends
to consider the agreement on image rights as such and does not have the competence to
deal with it. However, such conclusion might be different if specific elements of the
separate agreement suggest that it was in fact meant to be part of the actual
employment relationship. In the case at hand, such elements appear to exist. In this
particular matter, the Chamber noted that said “royalties” were integrated into the same
employment agreement and, as a result, was of the unanimous opinion that they have to
be considered as part of the player’s remuneration as a professional football player.
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REF FPSD-1967
8. The foregoing being established, the Chamber noted that the Claimant lodged a claim
for outstanding remuneration and requested the payment of the following amounts as
specified in art. 6 of the contract:
a.EUR 1,240,000 net plus 5% interest p.a. as from 31 March 2019;
b.EUR 1,329,132.06 net plus 5% interest p.a. as from 1 October 2019;
c.EUR 1,550,000 net plus 5% interest p.a. as from 31 March 2020;
d.EUR 1,550,000 net plus 5% interest p.a. as from 1 October 2020
9. In this respect, the Chamber noted that the player acknowledged that he received the
amount of EUR 310,000 on 23 January 2020, as well as EUR 220,867.94 on 15 September
2020.
10. Conversely, the Chamber took note of the Respondent’s position, which fundamentally
did not deny the claimed debt, but only argued that “tax financial subsidy shall belong
be returned to the club”
11. In relation to the position of the Respondent, the Chamber understood, however, that
the club did not submit any evidence concerning tax liabilities or subsidies. Moreover, the
Chamber understood that the Respondent failed to substantiate any valid reason to not
pay the player as contractually agreed.
12. Consequently, after noting the contents of the contract, the Chamber observed that the
player was entitled, inter alia, to the following amounts as per clause 6 of the Contract:
- EUR 1,550,000 net before 30 March 2019;
- EUR 1,550,000 net before 30 September 2019;
- EUR 1,550,000 net before 30 March 2020;
- EUR 1,550,000 net before 30 September 2020;
13. In this respect, the Chamber considered that the partial payment of EUR 310,000 on 23
January 2020, as well as EUR 220,867.94 on 15 September 2020 shall be attributed to the
oldest overdue instalment, which became due on 30 March 2019.
14. In view of all the previous considerations and arguments, the Chamber established that
the following amounts remain outstanding:
-
EUR 1,019,132,06 net, due on 30 March 2019
EUR 1,550,000 net due on 30 September 2019;
EUR 1,550,000 net due on 30 March 2020;
EUR 1,550,000 net due on 30 September 2020
15. Consequently, in strict application of the principle of pacta sunt servanda, the Dispute
Resolution Chamber established that the Respondent has to pay to the Claimant, the total
outstanding amount of EUR 5,669,132.06, as agreed in the contract and as specified in
the previous paragraph.
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REF FPSD-1967
16. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the Dispute Resolution Chamber decided to award 5%
interest p.a. over said amount as from the due dates.
17. In continuation, taking into account the previous 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.
18. The DRC established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and in the absence of
the circumstance of repeated offence, the DRC decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
19. Furthermore, taking into account the previous considerations, the Dispute Resolution
Chamber referred to par. 1 and 2 of art. 24bis 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.
20. In this regard, the Dispute Resolution Chamber pointed out 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 and for the maximum duration of three entire and consecutive
registration periods.
21. Therefore, bearing in mind the above, the Dispute Resolution Chamber decided that, in
the event that the Respondent does not pay the amounts due to the Claimant within 45
days as from the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective on
the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
22. Finally, the Dispute Resolution 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. 24bis par. 3 of the Regulations.
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REF FPSD-1967
III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Dusko Tosic, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Guangzhou R&F, has to pay to the Claimant, the following amounts:
-
EUR 1,019,132,06 net plus 5% interest p.a. as from 31 March 2019 until the date of effective payment;
-
EUR 1,550,000 net plus 5% interest p.a. as from 1 October 2019 until the date of effective payment;
-
EUR 1,550,000 net plus 5% interest p.a. as from 31 March 2020 until the date of effective payment;
-
EUR 1,550,000 net plus 5% interest p.a. as from 1 October 2020 until the date of effective payment.
4.
A warning (art. 12 bis of the Regulations) 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 article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 paid by the end of the 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 24bisof the Regulations on the Status and Transfer of Players.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-1967
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).
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
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