DRC Overdue Payables
Texto da decisão
REF FPSD-5001
Decision of the
Dispute Resolution Chamber
passed on 31 March 2022
regarding an employment-related dispute concerning the player Ante
Zivkovic
BY:
Philippe Diallo, France
CLAIMANT:
Ante Zivkovic, Croatia
Represented by Drazen Nikolic & Anja Draganic
RESPONDENT:
Umraniyespor, Turkey
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REF FPSD-5001
I.
Facts of the case
1.
On 25 June 2021, the Croatian player, Mr Ante Zivkovic (hereinafter: the player or the
Claimant), and the Turkish club, Umraniyespor (hereinafter: the club or the Respondent),
concluded a termination agreement in connection to the employment relationship previously
maintained between them (hereinafter: the termination agreement).
2.
Pursuant to clause 1.2 of the termination agreement, the club undertook to pay the player
the following amounts:
a. EUR 15,000 on 30 July 2021;
b. EUR 13,000 on 30 August 2021; and
c. EUR 13,500 on 30 September 2021.
3.
On 7 December 2021, the player put the club in default and granted it with a 15-days’
deadline in order to pay him the total amount of EUR 41,500 as per the termination
agreement.
4.
On 1 February 2022, the player filed the claim at hand before FIFA. In his claim, the player
requested payment of the entire amount described in the termination agreement, plus 5%
interest p.a. as from the date in which each of the instalments fell due until the date of
effective payment.
5.
By reply dated 22 February 2022, the club: (i) argued that the first instalment of the
termination agreement was paid on 20 August 2021; and (ii) referred to the COVID-19
pandemic and the financial crisis in order to justify its default regarding the outstanding
amounts.
6.
After being invited to do so, on 1 March 2022, the player acknowledge receipt of EUR 15,000
on 20 August 2021.
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
7.
First of all, the Single Judge of the 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 1 February 2022 and
submitted for decision on 31 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.
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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 lit. b) of the Regulations on
the Status and Transfer of Players (March 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 Croatian 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 (March 2022 edition), and
considering that the present claim was lodged on 1 February 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
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.
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 25 June 2021.
13. Having analysed the documentation on file, the Single Judge acknowledged that the parties’
concurred that the first instalment of the termination agreement was paid by the club on 20
August 2021, however the two last instalments remained outstanding. 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.
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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.
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 26,500.
19. In addition, taking into consideration the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest at the rate of 5% p.a. as follows: (i) on EUR 15,000 as from 31 July until 20 August
2021; and (ii) on the outstanding amounts as from the day after the due date of each
instalment until the date of effective payment.
ii. Art. 12bis of the Regulations
20. 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.
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21. 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 more than 30 days before, and granted the club
a minimum 10-day deadline to cure such breach of contract.
22. Accordingly, the Single Judge 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.
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, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
24. In this connection, the Single Judge 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
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.
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 player 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.
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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 concluded that no procedural compensation shall be
awarded in these proceedings.
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III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Ante Zivkovic, is accepted.
2.
The Respondent, Umraniyespor, has to pay to the Claimant, the following amounts:
- 5% interest p.a. on EUR 15,000 as from 31 July 2021 until 20 August 2021;
- EUR 13,000 as outstanding remuneration plus 5% interest p.a. as from 31 August 2021
until the date of effective payment; and
- EUR 13,500 as outstanding remuneration plus 5% interest p.a. as from 1 October 2021 until
the date of effective payment.
3.
A warning is imposed on the Respondent.
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 (March 2022
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.
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.
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.
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.
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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