DRC Overdue Payables
Texto da decisão
REF FPSD-4506
Decision of the
Dispute Resolution Chamber
passed on 9 February 2022
regarding an employment-related dispute concerning the player Nikola Zizic
BY:
Alexandra Gómez Bruinewoud (the Netherlands/Uruguay)
CLAIMANT:
Nikola Zizic, Croatia
Represented by Antonis Vogiatzakis
RESPONDENT:
Larissa FC, Greece
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REF FPSD-4506
I.
Facts of the case
1.
On 8 August 2017, the Croatian player Nikola Zizic (hereinafter: the player or Claimant) and
the Greek club Larissa FC (hereinafter: the club or Respondent) concluded an employment
agreement (hereinafter: the contract), valid between the date of signature and 30 June 2019,
based on which the player was entitled to receive an amount of EUR 654.50, as well as a
Christmas bonus, an Easter Bonus and a Holiday Benefit and a total amount of EUR 142,000,
payable in twenty monthly instalments.
2.
On 18 January 2019, the player and the club concluded an amendment to the contract
(hereinafter: the amendment) based on which the contract was extended until 30 June 2022,
and which provided the player the right to receive the following amounts:
-
3.
EUR 567 as monthly salary
EUR 95,000 as additional amount for the 2019/2020 season, payable in 10 monthly
instalments between 31 August 2019 and 31 May 2020;
EUR 95,000 as additional amount for the 2020/2021 season, payable in 10 monthly
instalments between 31 August 2020 and 31 May 2021;
EUR 105,000 as additional amount for the 2021/2022 season, payable in 10
monthly instalments between 31 August 2021 and 31 May 2022;
Additional bonuses as per the amendment.
On 14 May 2021, the player and the club concluded a settlement agreement, based on which
the following was agreed:
-
The contract would be unilaterally terminated as per 14 May 2021;
The club would pay the player an amount of EUR 50,000, as follows:
• EUR 30,000 ‘on the date of signature of the agreement’;
• EUR 5,000 on 30 June 2021;
• EUR 5,000 on 31 July 2021;
• EUR 5,000 on 31 August 2021;
• EUR 5,000 on 30 September 2021.
4.
What is more, the settlement agreement contained the following clauses:
‘3.1 In case the club has not fully paid the depth by 30 September 2021 (payment date of
the last instalment), the player consents a priori to grace period until 15 October 2021, in
order for the club to pay the residual at sending amount of the debt.
3.2 If the club has not fully patched the depth by 15 October 2021, it will owe to the player
as of 15 October 2021 and in addition to the residual outstanding amount of the depth and
extra amount of EUR 9,000 as penalty for the violation of the terms of the present
agreement’.
5.
On 19 November 2021, the player put the club in default for the total amount of EUR 29,000
(EUR 20,000 as outstanding amounts per the settlement agreement and EUR 9,000 as
penalty), providing it a 10 days’ deadline to remedy its default, however to no avail.
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REF FPSD-4506
II. Proceedings before FIFA
6.
On 8 December 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Position of the player
7.
In his claim, the player argues that the club failed to pay him all instalments as per the
settlement agreement, except for the first one, which was paid on 17 May 2021.
8.
The requests for relief of the player, as amended, were the following:
-
To be awarded EUR 20,000 as outstanding instalments per the settlement agreement,
plus 5% interest p.a. as from 16 October 2021;
To be awarded EUR 9,000 as penalty;
Sporting sanctions to be imposed on the club.
b. Position of the club
9.
In its reply, the club confirmed that it concluded the settlement agreement and that an
amount of EUR 20,000 remained unpaid, however explains that this the result of the financial
problems caused by the relation of the club to the second division of the Greek football as
well as the COVID-19 pandemic.
10. In relation to the penalty of EUR 9,000 included in the settlement agreement, the club deems
that said penalty is ‘abusive, immoral and illegal’, as well as ‘excessive and disproportionate’
and should be reduced to a maximum of 18% interest p.a. or an amount of EUR 4,500.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, it took note that the present matter was presented to FIFA on 8 December 2021 and
submitted for decision on 9 February 2021. 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.
12. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 and 2 in combination with art. 22 lit. b) of the
Regulations on the Status and Transfer of Players (August 2021 edition), the Single Judge of
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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 Greek club.
13. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 8 December 2021, 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
14. 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 she 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
15. Her 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, she 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
16. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute whether the amount of
EUR 20,000 due as per the settlement agreement remained unpaid without valid reason, and
as to whether the penalty fee in the amount of EUR 9,000 can be awarded to the player.
17. In this context, the Single Judge acknowledged that her task was to determine whether the
reasons brought forward by the club are valid reasons to be exempted from complying with
the terms of the settlement agreement, and whether the requested penalty fee can be applied
in the matter at hand.
18. The Single Judge first noted that in the case at hand the club bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
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19. Nonetheless, the Chamber noted that the club did not deny that the amount of EUR 20,000
as claimed by the player had remained unpaid. Furthermore, no reasonable justification was
presented by the club for not having complied with the terms of the contract. In particular,
the alleged fact that it was in financial problems as a result of the relegation to the second
division of the Greek football as well as because the COVID-19 pandemic, do not exempt the
club from tis obligation to comply with its contractual obligations.
20. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
club is held liable to pay the player the outstanding amounts deriving from the settlement
agreement concluded between the parties, namely EUR 20,000.
21. What is more, the Single Judge further noted that – based on article 3.2 of the transfer
agreement – the player claims the payment of a penalty fee in the amount of EUR 9,000,
however that the club deems that said penalty is to be considered excessive and
disproportionate and should be reduced.
22. Following the argumentation between the parties, the Single Judge decided to analyse the
penalty clause in itself to determine whether it could be applied as such.
23. In this regard, the Single Judge highlighted that in order to determine as to whether a penalty
clause is to be considered acceptable, the specific circumstances of the relevant case brought
before it shall also be taken into consideration.
24. In the specific case at hand, the Singe Judge deemed that the penalty clause of EUR 9,000 in
case of the late payment of the total amount of EUR 20,000 represented 45% of the total
amount to be paid under the settlement agreement, and as such would have to be a
proportionate and reasonable amount and percentage, also compared to the total value of
the settlement agreement.
25. Consequently, the Single Judge concluded that in accordance with the general principle of
pacta sunt servanda, the club is liable to pay to the player the amount of EUR 9,000,
corresponding to the penalty clause, in light of the club’s failure to pay the full amount
provided by the settlement agreement in a timely manner.
ii. Consequences
26. Having stated the above, the Single Judge turned her attention to the question of the
consequences of such unjustified breach of the contents of the settlement agreement
committed by the club.
27. The Single Judge observed that the financial obligations deemed as outstanding in the present
case correspond to EUR 20,000, as four outstanding instalments of EUR 5,000 each as per
the settlement agreement.
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28. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the club is liable to pay to the player the amount claimed as
outstanding under the settlement agreement, in total EUR 20,000, as detailed above.
29. In addition, taking into consideration the player’s request, as well as the constant practice of
the Single Judge in this regard, the latter decided to award the player interest at the rate of
5% p.a. on the outstanding amounts as from 16 October 2021 until the date of effective
payment.
30. Additionally, the Single Judge decided that the player is entitled – as per the contents of the
settlement agreement and because the total amount of EUR 20,000 was paid late – to a
penalty fee in the amount of EUR 9,000.
iii. Art. 12bis Regulations
31. 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.
32. 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 10-day deadline to cure such breach of contract.
33. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
34. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations, she
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the first offense by the club within the last two years, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
35. 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.
iv. Compliance with monetary decisions
36. 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.
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37. 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.
38. 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 club in accordance
with art. 24 par. 2, 4, and 7 of the Regulations.
39. 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.
40. 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
41. 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.
42. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 25
par. 8 of the Procedural Rules, and decided that no procedural compensation shall be
awarded in these proceedings.
43. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for relief
made by any of the parties.
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REF FPSD-4506
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Nikola Zizic, is accepted.
2.
The Respondent, Larissa FC, has to pay to the Claimant, the following amount:
- EUR 20,000 as outstanding amount plus 5% interest p.a. as from 16 October 2021 until
the date of effective payment;
- EUR 9,000 as penalty fee.
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 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 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
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 article 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).
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