DRC Overdue Payables
Texto da decisão
REF FPSD-4949
Decision of the
Dispute Resolution Chamber
passed on 24 March 2022
regarding an employment-related dispute concerning the player Jonatan
Viera Ramos
COMPOSITION:
DE WEGER Frans (The Netherlands), Chairperson
BOEYKENS Stijn (Belgium), member
CHETTY Elvis (Seychelle), member
CLAIMANT:
Jonatan Viera Ramos, Spain
Represented by Josep F. Vandellos Alamilla
RESPONDENT:
Beijing Guoan FC, China PR
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REF FPSD-4949
I.
Facts of the case
1.
In 2018, the Spanish player Jonatan Viera Ramos (hereinafter: the Claimant) and the Chinese
club Beijing Guoan FC (hereinafter: the Respondent) concluded an employment contract valid
from 20 February 2018 to 31 December 2020.
2.
On 2 August 2019, the parties signed a new employment contract valid from 1 January 2020
to 31 December 2021.
3.
On 30 June 2021, the parties agreed to terminate their employment relationship and sign
termination agreement (hereinafter: the Agreement).
4.
Pursuant to Clause 2 of the Agreement, the Respondent agreed to pay the Claimant the total
amount of EUR 833.334 NET “which shall be paid in the following instalments:
EUR 416,667 until 20 September 2021; and
EUR 416,667 until 20 October 2021”.
5.
On 10 January 2022, the Claimant sent a default notice to the Respondent requesting the
payment of the entire amount agreed giving a deadline of ten days to remedy the default, to
no avail.
6.
On 24 January 2022, the Respondent replied to the previous communications stating inter
alia “As it is very close to the Chinese Spring Festival, we will try to give you the payment date
after the national holiday”.
II. Proceedings before FIFA
7.
On 26 January 2022, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
8.
The Claimant states that the Respondent has failed to make the payment of both the
instalments agreed in the Agreement. The Claimant underlines that in good faith he has
waited for a considerable period of time before even sending a notice of default.
9.
In the Claimant’s view, the Respondent has simply shown no willingness to fulfil its financial
obligations towards the Claimant which has led to breach of the principle of pacta sunt
servanda.
10. The Claimant filed the following requests for relief:
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On these grounds, Mr. Jonatan Viera Ramos hereby respectfully requests the FIFA Dispute
Resolution Chamber to rule that:
1) The Respondent has breached the Termination Agreement by not paying the amounts
stipulated therein and thus, has overdue payables towards the Claimant.
2) The Respondent is obliged to pay the Claimant an amount EUR 833.334 NET plus interest
of 5% p.a. starting from 20 September and 20 October 2021 (i.e. due dates of each
installment) until the date of effective payment.
3) Following the notification of the FIFA decision, as per Article 12bis para. 2 and para. 4c)
and 4d) of the FIFA RSTP to impose the relevant sporting sanctions on the Respondent.
b. Position of the Respondent
11. The Respondent replied to the claim on the following terms.
12. The Respondent states that “we are confronted with enormous financial challenges due to
continuous COVID-19 pandemic, which has been widely recognized as a force majeure.
Considering the prevention and containing of COVID-19, and in order to protect public health
and ensure smooth operation of the Chinese Super League matches (“CSL”), all the CSL
matches have been held behind the door ever since the outbreak of the pandemic, which
sharply reduce the income of all the Clubs involved”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. 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 26 January 2022 and submitted for decision
on 24 March 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.
14. Subsequently, the members of the Chamber 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 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 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 Spanish player and
a Chinese club.
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15. 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 Players (March 2022 edition) and
considering that the present claim was lodged on 26 January 2022, 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
16. 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.
c. Merits of the dispute
17. 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
18. The foregoing having been established, the Chamber moved to the substance of the matter,
and took note of the fact that the Respondent had not contested owing the amounts claimed.
Although it has argued financial difficulties as a justification for the non-payment of the
amounts claimed.
19. In this context, the Chamber acknowledged that it its task was to determine if the Claimant
is entitled to the amounts claimed.
20. Firstly, the Chamber took due note of the Respondent’s argumentation regarding the effects
of the COVID-19 pandemic. However, the Chamber observed that the club had not provided
any valid justification for the non-payment of the amounts that were outstanding.
Furthermore, the Chamber observed that the Claimant had put the club in default and
granted it a 10-day deadline to comply with its financial obligations, however to no avail.
Thus, all Claimant’s entitlements had undisputedly remained outstanding without a prima
facie contractual basis, which constitutes a breach of the Agreement.
21. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Chamber decided that the Respondent is liable to pay to the Claimant the amounts which
were due under the Agreement, i.e. EUR 833,334 net.
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22. In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Chamber in this regard, the latter decided to award the Claimant interest at the rate
of 5% p.a. on the outstanding amounts as from the day after the different instalments fell
due until the date of effective payment
ii. Consequences under art. 12bis
23. In continuation, 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.
24. To this end, the Chamber confirmed that on 10 January 2022 the Claimant put the
Respondent 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.
25. Accordingly, the Chamber 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.
26. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. On account of the above, the Chamber
decided to impose a reprimand on the Respondent in accordance with art. 12bis par. 4 lit. b)
of the Regulations.
27. In this connection, the Chamber 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
28. 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.
29. 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.
30. 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
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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.
31. 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.
32. 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. 24 par. 8 of the
Regulations.
d. Costs
33. 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.
34. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25 par.
8 of the Procedural Rules, and decided that no procedural compensation shall be awarded in
these proceedings.
35. 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, Jonatan Viera Ramos, is accepted.
2.
The Respondent, Beijing Guoan FC, has to pay to the Claimant, the following amount(s):
- EUR 833,334 net as outstanding amount plus 5% interest p.a. as follows:
On 416,667 from 21 September 2021 until the date of effective payment;
On 416,667 from 21 October 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.
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.
6.
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.
7.
This decision is rendered without costs.
8.
A reprimand is imposed on the Respondent.
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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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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