Dispute Resolution Chamber
Texto da decisão
REF 20-01612
Decision of the
Dispute Resolution Chamber judge
passed on 11 May 2021,
regarding an employment-related dispute concerning the player Francisco Manuel
Vélez Jiménez
BY:
Jon Newman (USA), DRC Judge
CLAIMANT:
Francisco Manuel Vélez Jiménez, Spain
Represented by Mr Mario Resino Sastre
RESPONDENT:
Aris FC, Greece
Represented by Mr Konstantinos Zemberis
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I. FACTS OF THE CASE
1.
On 25 July 2018, the Spanish player, Francisco Manuel Vélez Jiménez (hereinafter: the player or the
Claimant), and the Greek club, Aris FC (hereinafter: the club or the Respondent) concluded an
employment contract (hereinafter: the contract), which was valid for the seasons 2018/2019 and
2019/2020, i.e. until 30 June 2020.
2.
On 31 July 2020, the parties concluded a settlement agreement, whereby the club undertook to pay
to the player –in accordance with clauses 2.1 and 2.2 thereof– the amount of EUR 103,000 net,
broken down as follows:
EUR 20,000 by 7 August 2020;
EUR 20,000 by 31 August 2020;
EUR 8,000 by 30 September 2020;
EUR 8,000 by 31 October 2020;
EUR 8,000 by 30 November 2020;
EUR 8,000 by 31 December 2020;
EUR 8,000 by 31 January 2021;
EUR 8,000 by 28 February 2021;
EUR 8,000 by 31 March 2021;
EUR 7,000 by 30 April 2021.
3.
Clause 4.3 of the settlement agreement reads as follows: “Both Parties agree that, in case of the
Club`s failure to comply with its financial obligations pursuant to Clause 2.2 of this Settlement
Agreement, the Player (the creditor), after the expiry of an agreed grace period of ten (10) days from
the stipulated date of each payment, shall put the Club (the debtor club) in default in writing, granting
a deadline of ten (10) extra days for the Club in default to remedy such breach, i.e. to comply with its
financial obligations due”.
4.
In addition, clauses 4.4 and 4.5 of the settlement agreement stipulate the following:
“4.4 In addition, if the Club does not comply with its financial obligations within the additional time
limit of ten (10) days that will be granted in writing for the remedy of the breach, it will be considered
as a material breach of the Settlement Agreement, thus the following cumulative consequences will
be of application:
4.4.1 All Instalments unpaid pursuant to this Settlement Agreement will become due since the
material breach of the Settlement Agreement by the Club would have taken place.
4.4.2 Therefore, the remaining amount of clause 2.2. will be automatically overdue by the Club,
thus ARIS FC expressly acknowledge, recognize and declare that the Player will be entitled to claim
the said remaining amount before FIFA Jurisdictional bodies, in accordance to the procedure
foreseen in article 12 BIS of FIFA RSTP.
4.4.3 In addition, the Player will be entitled to receive, as an agreed penalty clause, an amount
equivalent to ten per cent (10%) of the remaining settlement payments.
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4.4.4 Likewise, the interests accrued since each due date, until the effective date of payment of the
outstanding settlement amounts by the Club, calculated at the rate of ten per cent (10%) per
annum, will be also due.
4.5 Both Parties expressly and irrevocably declare and agree that the present Clause 4 is configured
as an essential and decisive condition of the present Settlement Agreement and without it the Parties,
and especially the Player, would not have signed the present Settlement Agreement”.
5.
By means of his email of 1 September 2020, the player put the club in default of payment in the
amount of EUR 20,000, corresponding to the second instalment of the settlement agreement and
made reference to clause 2.2 in connection to clause 4, explaining that “should the contractual breach
of the Club persists, it is our understanding that the financial consequences agreed in the Settlement
agreement shall be of application, in the terms set out in the mentioned document”.
6.
On 24 September 2020, the club sent an email to the player, stating that –due to unexpected
circumstances–, the club was not able to pay the second instalment of the settlement agreement.
Nevertheless, the club stated that the payment of the said second instalment would be made on 29
September 2020, prior to the due date of the third instalment, i.e. 30 September 2020.
7.
On 28 September, the club made the payment of the second instalment of the settlement agreement
in the amount of EUR 20,000.
8.
By means of his email of 21 October 2020, the player put the club in default of the third instalment
of the settlement agreement, in the amount of EUR 8,000, which was payable by 30 September 2020;
thereby granting the club a 10 days´ deadline to remedy the default. Moreover, the player thereby
warned the club that, should it not remedy the default, the consequences foreseen in clause 4 of the
settlement agreement would be met.
9.
On 9 November 2020, the club paid the amount of EUR 8,000 corresponding to the 3rd instalment
of the settlement agreement.
10. Furthermore, on 29 March 2021, the club proceeded with the payment of the amount of EUR 55,000,
corresponding to the remaining value of the settlement agreement.
11. On 6 November 2020, the player lodged a claim against the club before FIFA, -which was amended
on 21 April 2021- requesting to be awarded a penalty in the amount of EUR 6,300, corresponding to
10% of the unpaid amount that was outstanding in compliance with clauses 4.3 and 4.4 of the
settlement agreement (10% of 63,000 equals 6,300); as well as 10% interest p.a. on the amount of
EUR 63,000 as from 30 September 2020 until 29 March 2021.
12. In his claim, the player explained that, despite having exchanged several correspondence with the
Respondent, the latter continuously failed to timely comply with the payment of the instalments
payable as per the settlement agreement.
13. In addition, the Claimant referred to the wording of clauses 4.3 and 4.4 of the settlement agreement
and argued that, insofar he put the club in default of payment of the third instalment of the settlement
agreement –once more than 10 days had elapsed since its due date– and granted the Respondent a
10 day´s deadline to remedy the default without the latter doing so, clause 4.4 of the settlement
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agreement was activated. Consequently –continued the Claimant–, clauses 4.4.1 to 4.4.4 of the
settlement agreement were activated, i.e. the player is entitled to receive:
a) a penalty in an amount equal to 10% of the outstanding moneys, i.e. 10% of EUR 63,000
(penalty – clause 4.4.3);
b) interest of 10% p.a. on the amounts that were paid late (default interest agreed – clause
4.4.4).
14. In its reply to the claim, the Respondent firstly stressed that it always had the intention to fulfil its
financial obligations towards the Claimant and that the default only occurred “due to cash flow
problems created and enhanced by the totally unexpected and unpredictable Covid-19 pandemic and
its consequences and the huge pertinent financial damage suffered by the club”.
15. In this context, the Respondent acknowledged being in default of payment. However, the latter stated
that the amount of EUR 8,000 –corresponding to the third instalment of the settlement agreement–
was paid to the Claimant on 9 November 2020, i.e. 3 days after the Claimant lodged the present
claim before FIFA.
16. Furthermore, the Respondent highlighted that it paid the residual value of the settlement agreement,
i.e. EUR 55,000, on 29 March 2021. 18. Consequently, the Respondent held that, since it has “fully
paid the whole outstanding and claimed amount to the Claimant, there is no need for the matter to
be submitted for a formal decision as the claim has been fully satisfied. Given the above, Aris FC
respectfully asks hereby your services to close the present proceedings and the relevant file”.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE
a. Competence and applicable legal framework
1.
First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed
whether he was competent to deal with the case at hand. In this respect, he took note that the
present matter was submitted to FIFA on 6 November 2020 and was submitted for decision on 11
May 2021. 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 DRC judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed
that, in accordance with art. 24 par. 1 and 2 in combination with art. 22 lit. b) of the Regulations on
the Status and Transfer of Players, the DRC judge is competent to deal with the matter at stake, which
concerns an employment–related dispute with an international dimension.
3.
In continuation, the DRC judge analysed which regulations should be applicable as to the substance
of the matter. In this respect, the DRC judge confirmed that in accordance with art. 26 par. 1 and 2
of the Regulations on the Status and Transfer of Players (February 2021 edition), and considering that
the claim was lodged on 6 November 2020, the October 2020 edition of the aforementioned
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
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b. Burden of proof
4.
The DRC judge 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 an alleged fact shall carry
the respective burden of proof. Likewise, the DRC judge stressed the wording of art. 12 par. 4 of the
Procedural Rules, pursuant to which it may consider evidence not filed by the parties.
5.
In this respect, the DRC judge 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. Merits of the dispute
6.
The competence of the DRC judge and the applicable regulations having been established, the DRC
judge entered into the substance of the matter. In this respect, the DC judge started by
acknowledging all the above-mentioned facts as well as the arguments and the documentation
submitted by the parties. However, the DRC 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.
i. Main legal discussion and considerations
7.
Having said that, the DRC judge duly examined all the documentation on file and acknowledged that,
after having concluded a settlement agreement, whereby the club undertook to pay to the player the
total amount of EUR 103,000 net in different instalments, the club failed to comply with the payment
of all of the instalments agreed as per the termination agreement on their specific due dates. In this
respect, the DRC judge further noted that the Claimant confirmed having received the principal
amount of the settlement agreement, i.e. EUR 103,000, albeit not on the agreed due dates.
8.
After having carefully analysed the positions of both parties, the DRC judge acknowledged that it
remained undisputed that the Respondent failed to pay the third instalment of the settlement
agreement within the timeframe provided by clause 4.3 of the contract, which states that –in case of
default of payment–, the club will be automatically given a grace period of 10 days to remedy the
default and that, thereafter, the Claimant may put the Respondent in default, granting the latter 10
days to comply with its financial obligations; and, should the Respondent not do so within the
deadline granted, the consequences stated in clause 4.4 of the settlement agreement would be
activated, i.e. the acceleration clause, the penalty clause and the default interest clause.
9.
In this context –continued the DRC judge–, given that the player put the club in default of payment
on 21 October 2020, once the payment of the third instalment of the settlement agreement had been
due for 21 days, and thereby granted the Respondent a 10 days´ deadline ex. art. 4.3 of the settlement
agreement, without the Respondent complying with its financial obligations within the said deadline,
the consequences contained in clause 4.4 were activated, as pointed out by the Claimant.
10. Regarding the argumentation of the Respondent –stressed the DRC judge–, it must be noted that the
Claimant confirmed having received the payment of the 3rd instalment on 9 November 2020, as well
as the residual value of the settlement agreement on 29 March 2021. However, pointed out the DRC
judge, insofar the said payments were not made within the 10 days´ deadline granted by the
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Claimant to the Respondent in his email of 21 October 2020, the consequences of clause 4.4 of the
settlement agreement were nevertheless activated.
11. Furthermore, as to the argument of the Respondent that the lack of payment was a consequences of
the unexpected circumstances it faced, i.e. the cash flow problems created upon the Covid-19
pandemic and its losses of 60% of its income, the DRC judge determined that the said argument
could not possibly be upheld, considering that the settlement agreement was concluded between the
parties on 31 July 2020, once the Covid-19 was part of the financial reality of the parties and,
therefore, the Respondent cannot argue that the financial consequences that arose therefrom were
unforeseeable at that moment in time.
ii. Consequences
12. Bearing in mind the previous considerations, the DRC judge went on to deal with the consequences
of the early termination of the employment contract.
13. First of all, the DRC judge concurred that the Respondent must fulfil its obligations as per the
settlement agreement concluded between the parties, in accordance with the general legal principle:
“pacta sunt servanda”.
14. On account of the above considerations and the documentation on file, the DRC judge decided that
the Respondent is liable to pay to the Claimant 10% interest p.a. on the amount of EUR 63,000, as
follows: on the amount of EUR 63,000, as from 30 September 2020 until 9 November 2020; and on
the amount of EUR 55,000, as from 30 September 2020 until 29 March 2021. In this respect, the
DRC judge wished to stress that, ex. clause 4.4.4 of the settlement agreement, the default interest
shall be granted as from the due date, which was 30 September 2020 (insofar the acceleration clause
was activated).
15. In addition, the DRC judge determined that the player is entitled to receive a penalty in the amount
of EUR 6,300 net (the fact that the Respondent paid the principal outstanding amounts during the
course of the present proceedings does not affect the amount due as penalty, since the said
instalments were paid outside of the deadline agreed between the parties).
16. What is more, continued the DRC judge, the amount of EUR 6,300, due to the player as penalty, shall
be awarded and should not be subject of any reduction, insofar: 1.) the penalty represents only 10%
of the principal amount (jurisprudential limit of 50% not exceeded); 2.) the Respondent only paid the
full sums on 29 March 2021, i.e. 6 months after the due date, considering that the acceleration clause
was activated; 3.) in view of the clear wording of clauses 4.3, 4.4 and 4.5 of the settlement agreement,
it is crystal-clear that the intention of the parties when concluding the settlement agreement was to
link the penalty to the eventually non-timely paid instalments. Hence, since the amount of EUR 63,000
was not timely paid, the penalty should amount to 10% thereof, irrespective of the payments made
by the Respondent during the course of the proceedings. For clarification purposes, the DRC judge
wished to stress that no default interest shall be granted in connection with the penalty awarded (non
bis in idem).
iii. Compliance with monetary decisions
17. Furthermore, taking into account the consideration under number II.3 above, the DRC judge referred
to para. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent
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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.
18. In this regard, the DRC judge 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.
19. Therefore, bearing in mind the above, the DRC 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.
20. Finally, the DRC 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. 24bis par. 3 of the
Regulations.
21. The DRC judge concluded his deliberations in the present matter stipulating that the Claimant’s claim
is partially accepted, only because the dies ad quem for the calculation of the 10% interest differs
from the one requested by the Claimant.
III.
DECISION OF THE DRC JUDGE
1.
The claim of the Claimant, Francisco Manuel Vélez Jiménez, is partially accepted.
2.
The Respondent, Aris FC, has to pay to the Claimant EUR 6,300 as penalty.
3.
The Respondent has to pay to the Claimant default interest at the rate of 10% p.a., as follows:
On the amount of EUR 63,000, as from 30 September 2020 until 9 November 2020;
On the amount of EUR 55,000, as from 10 November 2020 until 29 March 2021.
4.
Any further claims of the Claimant are rejected.
5.
The Claimant is directed to immediately and directly inform the Respondent of the relevant bank
account to which the Respondent must pay the due amount.
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6.
The Respondent shall provide evidence of payment of the due amount in accordance with this
decision to [email protected], duly translated, if applicable, into one of the official FIFA languages
(English, French, German, Spanish).
7.
In the event that the amount due, plus interest as established above is not paid by the Respondent
within 45 days, as from the notification by the Claimant of the relevant bank details to the
Respondent, the following consequences shall arise:
1. The Respondent shall be banned from registering any new players, either nationally or
internationally, up until the due amount is paid and for the maximum duration of three
entire and consecutive registration periods. The aforementioned ban mentioned will be
lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
2. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
8. This decision is rendered without costs.
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
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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