Dispute Resolution Chamber
Texto da decisão
REF FPSD-1858
Decision of the
Dispute Resolution Chamber
passed on 20 May 2021
regarding an employment-related dispute concerning the player Rajiv Ramon van La
Parra
COMPOSITION:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Pavel Pivovarov (Russia), member
CLAIMANT:
Rajiv Ramon van La Parra, Netherlands
Represented by Ercan Sevdimbaş
RESPONDENT:
FK Crvena Zvezda, Serbia
Represented by Sven Demeulemeester & Gauthier Bouchat
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I.
FACTS OF THE CASE
1.
On 31 August 2019, the Dutch player, Rajiv Ramon van La Parra (hereinafter: Claimant),
and the Serbian club, FK Crvena Zvezda (hereinafter: Respondent) signed an employment
contract valid as from 31 August 2019 to 30 June 2022.
2.
On 17 March 2020, the Claimant and the Respondent mutually terminated the contract in
terms of which they signed a consensual termination agreement (hereinafter: “the
termination agreement”).
3.
In accordance with article 3 of the termination agreement, the Respondent undertook to
pay to the Claimant a termination fee in the amount of EUR 388,999.98 net, as follows:
-
EUR 119,666.66 on 20 March 2020 (hereinafter: the first instalment); and
EUR 269,333.32 on 25 July 2020 (hereinafter: the second instalment)
II.
PROCEEDINGS BEFORE FIFA
4.
On 23 February 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a.
The claim of the Claimant
5.
According to the Claimant, the Respondent paid the first instalment (EUR 119,666.66),
however the Respondent failed to pay the second instalment (EUR 269,333.32), which was
due and payable on 25 July 2020.
6.
The Claimant further indicated that the Respondent on 29 January 2021 sent an offer letter
to the Claimant, in terms of which the Respondent, requested rescheduling the payment
of the second instalment as follows:
-
1st instalment shall be paid by 15 February 2021 in amount of EUR 44,889.16;
2nd instalment shall be paid by 15April 2021 in amount of EUR 44,.888.83;
3rd instalment shall be paid by 15 July 2021 in amount of EUR 44,888.83;
4th instalment shall be paid by 15 October 2021 in amount of EUR 44,888.83;
5th instalment shall be paid by 31January 2022 in amount of EUR 44,888.83; and
6th instalment shall be paid by 31 July 2022 in amount of EUR 44,888.83.
7.
In this respect, the Claimant explained that it rejected the aforesaid offer of the Respondent.
8.
The Claimant requested, that the Respondent pay to the Claimant:
-
the overdue and unpaid amount of net EUR 269.333,32, plus 5% p.a. from the 25
July 2020 until the date of effective payment; and
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-
judicial costs and the attorney fees of the Claimant
b.
9.
Position of the Respondent
According to the Respondent, the parties agreed that in the event of a dispute, the parties
shall attempt to find an amicable solution as a mandatory prerequisite as detailed in clause
6 of the termination agreement, stipulating the following :
“In the event of a dispute, the Parties shall attempt to resolve it by mutual agreement,
otherwise the Arbitral Tribunal of the Football Association of Serbia or FIFA shall be
competent”
10.
In this context, the Respondent indicated that the Claimant did not comply with the
provisions of clause 6 of the agreement as the Claimant did not attempt to amicably settle
the matter first and therefore the claim shall be considered inadmissible, as it was lodged
in violation of clause 6 of the termination agreement.
11.
Furthermore, the Respondent, pursuant to the principle of clausula rebus sic stantibus
requested that the DRC Chamber reduce the amount of the second instalment, as well as
to establish a new payment plan, reflecting the current economic situation.
12.
In this regard, the Respondent indicated that “the deciding-body will have the possibility to
adapt the contract if the following conditions are met” as per the aforesaid principle :
(i)
(ii)
(iii)
13.
Subsequent change in circumstances;
Lack of predictability;
Serious disruption of the contractual balance.
Accordingly, the Respondent highlighted that all of the above conditions have been met,
due to the following:
(i)
“The COVID-19 pandemic and its financial consequences constitute a subsequent
change in circumstances for the Respondent as shown in the Profit & Loss
Statement (P&L), the respondent suffered a lost of EUR 15 million during the
financial year 2020 as a direct consequence of the pandemic, this situation
constitutes an exceptional change in the circumstances, which has seriously
affected its possibility to perform the payment of the second instalment under the
termination agreement. (note: Respondent’s profit and loss statement is on file)
(ii)
The current economic circumstances were not predictable at the time of
conclusion of the contract in March 2020.
(iii)
It must be recalled that in the present matter, only Red Star had obligation
towards the Player. Indeed, there was no counter-performance from his side. The
Player is not facing any financial difficulties insofar he receives regular salary
payments.”
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14.
In conclusion, the Respondent requested that the FIFA Dispute Resolution Chamber:
-
declare the claim of the Player as inadmissible;
in the alternative
-
reject the claim of the Player;
in the further alternative,
III.
-
adjust the amounts to be paid to the player at its discretion, and set new and binding
payment terms;
-
not impose any sanctions on the club; and
-
rule that the parties shall bear their own costs and expenses
CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a.
Competence and applicable legal framework
15.
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 23 February 2021 and
submitted for decision on 20 May 2021. Taking into account the wording of art. 21 of the
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.
16.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules
and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. a) and
b) of the Regulations on the Status and Transfer of Players (edition February 2021), 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 Dutch player
and a Serbian club.
17.
However, the Chamber acknowledged that the Respondent indicated that the claim of the
Claimant is inadmissible, as it was lodged in violation of clause 6 of the termination
agreement, which stipulates the following:
“In the event of a dispute, the Parties shall attempt to resolve it by mutual agreement,
otherwise the Arbitral Tribunal of the Football Association of Serbia or FIFA shall be
competent”
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18.
Taking into account all the above, the Chamber emphasised that in accordance with art.
22 lit. b) of the Regulations on the Status and Transfer of Players it is competent to deal
with a matter such as the one at hand, unless an independent arbitration tribunal,
guaranteeing fair proceedings and respecting the principle of equal representation of
players and clubs, has been established at national level within the framework of the
association and/or a collective bargaining agreement. With regard to the standards to be
imposed on an independent arbitration tribunal guaranteeing fair proceedings, the
Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. Equally, the
members of the Chamber referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January
2008.
19.
In relation to the above, the Chamber also deemed it vital to outline that one of the basic
conditions that needs to be met in order to establish that another organ than the DRC is
competent to settle an employment-related dispute between a club and a player of an
international dimension, is that the jurisdiction of the relevant national arbitration tribunal
or national court derives from a clear reference in the employment contract.
20.
Therefore, while analysing whether it was competent to hear the present matter, the
Dispute Resolution Chamber considered that it should, first and foremost, analyse whether
the employment contract at the basis of the present dispute contained a clear jurisdiction
clause.
21.
Having examined the relevant provision, the Chamber concluded the said jurisdiction clause
is not an exclusive in favour of one specific court of arbitration tribunal in Serbia, as it also
refers to FIFA.
22.
On account of all the above, the Chamber established that the Respondent’s objection
towards the competence of FIFA to deal with the present matter has to be rejected, and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the
Regulations on the Status and Transfer of Players, to consider the present matter as to the
substance.
23.
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 Player (edition February 2021), and
considering that the present claim was lodged on 23 February 2021, the February 2021
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b.
24.
Burden of proof
The Chamber recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of
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an alleged fact shall carry the respective burden of proof. Likewise, the DRC stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties.
25.
In this respect, the Chamber also recalled that in accordance with art. 6 par. 3 of Annexe 3
of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c.
26.
Merits of the dispute
The competence of the DRC and the applicable regulations having been established, the
DRC entered into the merits of the dispute. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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
27.
The foregoing having been established, the Chamber moved to the substance of the matter,
and took note that the parties - after having concluded an employment agreement for the
period between 31 August 2019 and 30 June 2022 - had terminated their employment
relation by mutual consent by entering into the termination agreement on 17 March
2020. In accordance with the termination agreement, the Respondent inter alia undertook
to pay to the Claimant a termination fee in the amount of EUR 388,999.98 net, as follows:
-
EUR 119,666.66 on 20 March 2020 (the first instalment) ; and
EUR 269,333.32 on 25 July 2020 (the second instalment)
28.
In this context, the Chamber noted that according to the Claimant, the Respondent had
timely paid the amount of EUR 119,666.66, but failed to remit to him the amount of EUR
269,333.32.
29.
The Chamber took into account that the Respondent, for its part, argued that the parties
had to as a first step in resolving the dispute attempt to reach an amicable solution as
detailed in clause 6 of the termination agreement.
30.
In this regard, the DRC observed that the Respondent by means of its letter dated, 29
January 2021, made an attempt to amicably settle the dispute; however, the Claimant
considered said proposal as unreasonable and unacceptable.
31.
The DRC noted that the Respondent further argued that the COVID-19 pandemic had a
significant impact on its financial situation and therefore, pursuant to the principle of
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clausula rebus sic stantibus proposed that the DRC Chamber reduce the amount of the
second instalment.
32.
Having said that, the DRC wished to refer to the fact that, in light of the worldwide COVID19 outbreak, 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 clarification about the most relevant questions in connection with the regulatory
consequences of the COVID-19 outbreak and identifies solutions for new regulatory
matters.
33.
In this context, the DRC considered that – based on the above set of documents issued by
FIFA - the arguments raised by the Respondent cannot be considered a valid reason for nonpayment 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.
34.
Furthermore, the DRC highlighted that the agreement was concluded and signed during
the COVID-19 pandemic, therefore the argument of the Respondent regarding the
impossibility to comply with its financial obligations due to the COVID-19 pandemic, cannot
be accepted.
ii. Consequences
35.
Having stated the above, the members of the Chamber turned their attention to the
question of the consequences of such unjustified breach of contract committed by the
Respondent and established that the Respondent failed to remit to the Claimant’s the
termination fee in the amount of EUR 269,333.32, corresponding to the second instalment
under the termination agreement.
36.
Consequently, the Chamber decided that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of
EUR 269,333.32, plus 5% interest p.a. on the said amount as from 26 July 2020 until the
date of effective payment
iii. Compliance with monetary decisions
37.
Finally, taking into account the consideration under numbers 35. and 36. above, the
Chamber referred to par. 1 lit. 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.
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38.
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.
39.
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. 24bis par. 2, 4, and 7 of the Regulations.
40.
The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Registration Form, which is attached to the
present decision.
41.
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. 24bis par. 8
of the Regulations.
d.
Costs
42.
The Chamber referred to article 18 par. 2 of the Procedural Rules, according to which “DRC
proceedings relating to disputes between clubs and players in relation to the maintenance
of contractual stability as well as international employment related disputes between a club
and a player are free of charge”. Accordingly, the Chamber decided that no procedural
costs were to be imposed on the parties.
43.
Likewise and for the sake of completeness, the Chamber recalled the contents of art. 18
par. 4 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
44.
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, Rajiv Ramon van La Parra, is accepted.
2. The Respondent, FK Crvena Zvezda, has to pay to the Claimant, the amount of EUR 269,333.32,
plus 5% interest p.a. as from 26 July 2020 until the date of effective payment.
3. Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4. 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.
5. The consequences shall only be enforced at the request of the Claimant in accordance with
article 24bis paragraphs 7 and 8 and article 24ter of the Regulations on the Status and Transfer
of Players.
6. This decision is rendered without costs.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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:
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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