DRC Overdue Payables
Texto da decisão
REF FPSD-2904
Decision of the
Dispute Resolution Chamber
passed on 8 October 2021
regarding an employment-related dispute concerning the player Fernando Zuqui
BY:
Clifford J. Hendel (USA & France), Deputy Chairperson
Tomislav Kasalo (Croatia), member
Daan de Jong (Netherlands), member
CLAIMANT:
Fernando Zuqui, Argentina
RESPONDENT:
Yeni Malatyaspor, Turkey
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REF FPSD-2904
I.
Facts
1.
On 21 August 2020, the parties concluded an employment contract valid as from until 31 May 2021
2.
According to the contract, the player was entitled to the following:
“For 2020-2021 Football Season : 450.000 USD NET
Signing Fee
The player will be entitled 50.000 USD at the time signature.
Salary
The rest of the aforementioned amount (400.000 USD) is to be paid to the PLAYER by the CLUB
in 9 (nine) equal lnstallments on the below mentioned dates:
30 September 2020 ,31 October 2020, 30 November 2020, 31 December 2020, 31 January 2020, 28
February 2021, 31 March 2021, 30 April 2020, and 30 May 2021, a monthly salary of 44.444,44-USD”
3.
On 17 June 2021, the legal representative of the player sent the following default notice:
“The object of the present communication is to send warning in the terms of Article 12bis FIFA
RSTP, to concede you the unextendible and final term of thirteen running days to pay off all
overdue sums arising from the referenced employment contract.
Specifically, the sums overdue are:
a) The sum of usd 666.- corresponding to the unpaid portion of the November 2020 Salary,
payable on 30 November 2020.
b) The sum of usd 44.444,44.- corresponding to the salary of December 2020, payable on
31 December 2020.
c) The sum of usd 44.444,44.- corresponding to the salary of January 2021, payable on 31
January 2021.
d) The sum of usd 44.444,44.- corresponding to the salary of February 2021, payable on 28
February 2021.
e) The sum of usd 44.444,44.- corresponding to the salary of March 2021, payable on 31
March 2021.
f) The sum of usd 44.444,44.- corresponding to the salary of April 2021, payable on 30
April 2021.
g) The sum of usd 44.444,44.- corresponding to the salary of May 2021, payable on 30 May
2021.
Total sums overdue for all concepts as of 15 June 2021: usd 267.332,64
4.
On 13 July 2021, the Claimant lodged a claim before FIFA for outstanding remuneration, and requested
the payment of USD 267,332.64, plus 5% interest p.a. as from the due dates, as indicated in his default
notice.
5.
In its reply to the claim, the Respondent stated that “While the player's contract is in continue,club did
a several payments to player .”, and submitted a series of receipts in this regards, as follows:
Name:
Date:
Amount
Bank Receipt Garanti BBVA
18/12/2020
USD 22,222
Bank Receipt Garanti BBVA
8/10/2020
USD 6,000
Bank Receipt Garanti BBVA “for 3/02/2021
USD 66,000
Month 10/11”
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REF FPSD-2904
Bank Receipt Garanti BBVA 3/02/2021
“YMS 2020-2021 Season –
Payment for Signing”
Bank Receipt Garanti BBVA
13/10/2020
USD 50,000
USD 44,444
6.
In his replica, the claimant argued that the Club is attempting to confuse the FIFA DRC by presenting
proof of payments that have already been admitted and recognized.
7.
As as result, the player insisted in his initial claim.
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II.
Considerations of the Dispute Resolution Chamber
1.
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. 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 Dispute Resolution Chamber referred to art. 3 par. 1 of the Procedural Rules
and emphasised that, in accordance with art.
24
par.
1
in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the Dispute Resolution Chamber is
competent to deal with matters which concern employment-related disputes with an international
dimension between players and clubs.
3.
In continuation, the Dispute Resolution Chamber analysed which edition of the Regulations of the
Status and Transfer of Players should be applicable to the present matter. In this respect, the Dispute
Resolution Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players, and considering the date when the claim was lodged, the February
2021 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the
matter at hand.
4.
With the above having been established, the Dispute Resolution Chamber entered into the substance
of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents
contained in the file. However, the Dispute Resolution Chamber emphasized that in the following
considerations it will refer only to facts, arguments and documentary evidence which it considered
pertinent for the assessment of the matter at hand.
5.
In this respect, the Chamber noted that, on 21 August 2020, the parties concluded an employment
contract valid as from until 31 May 2021 with the economic conditions quoted in point I.2. above.
6.
Thereafter, the Chamber observed that the Claimant lodged a claim before FIFA for outstanding
remuneration, and requested the payment of USD 267,332.64, detailed as follows:
a) USD 666.- corresponding to the unpaid portion of the November 2020 Salary, payable on 30
November 2020.
b) USD 44.444,44.- corresponding to the salary of December 2020, payable on 31 December 2020.
c) USD 44.444,44.- corresponding to the salary of January 2021, payable on 31 January 2021.
d) USD 44.444,44.- corresponding to the salary of February 2021, payable on 28 February 2021.
e) USD 44.444,44.- corresponding to the salary of March 2021, payable on 31 March 2021.
f) USD 44.444,44.- corresponding to the salary of April 2021, payable on 30 April 2021.
g) USD 44.444,44.- corresponding to the salary of May 2021, payable on 30 May 2021.
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REF FPSD-2904
7.
On the other hand, the Chamber took note of the Respondent’s position, which fundamentally
consisted in the provision of the following receipts:
Name:
Bank Receipt Garanti BBVA
Bank Receipt Garanti BBVA
Bank Receipt Garanti BBVA
“for Month 10/11”
Bank Receipt Garanti BBVA
“YMS 2020-2021 Season –
Payment for Signing”
Bank Receipt Garanti BBVA
Date:
18/12/2020
8/10/2020
3/02/2021
Amount
USD 22,222
USD 6,000
USD 66,000
3/02/2021
USD 50,000
13/10/2020
USD 44,444
8.
In this respect, the Chamber considered pertinent to recall the contents of art. 12 of the Procedural
Rules, according to which “3. Any party claiming a right on the basis of an alleged fact shall carry
the burden of proof. During the proceedings, the parties shall submit all relevant facts and evidence
of which they are aware at that time, or of which they should have been aware if they had exercised
due care” and “7. Evidence shall be considered with free discretion, taking into account the conduct
of the parties during the proceedings, especially a failure to comply with a personal summons, a
refusal to answer questions and the withholding of requested evidence.”
9.
In relation to provided receipts, the Chamber noted, however, that none of them prove that they are
related to the claimed amounts since November 2020.
10.
In view of the above, the Chamber had no other option that to consider that the Claimed amount
of USD 267,332.64, as mentioned in point II. 6 above, remains outstanding.
11.
Consequently, in strict application of the principle of pacta sunt servanda, the Dispute Resolution
Chamber established that the Respondent has to pay to the Claimant, the total outstanding amount
of USD 267,332.64, as agreed in the contract between the parties.
12.
Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence
in this regard, the Dispute Resolution Chamber decided to award 5% interest p.a. over said amount
as from the due dates.
13.
In continuation, taking into account the previous considerations, the Dispute Resolution 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.
14.
The Dispute Resolution Chamber established that in virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. In this context, the Dispute Resolution
Chamber highlighted that the Respondent had already been found to have delayed a due payment
for more than 30 days without a prima facie contractual basis. In view of the above, the Dispute
Resolution Chamber decided to impose a fine of the Regulations on the Respondent in the amount
15 000 USD, considering that the Respondent was already been found in breach of art. 12 bis of the
Regulations (cf. FPSD-2021).
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REF FPSD-2904
15.
Moreover, the Dispute Resolution Chamber referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating circumstance and lead to a
more severe penalty.
16.
Furthermore, taking into account the previous considerations, the Dispute Resolution Chamber
referred to par. 1 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.
17.
In this regard, the Dispute Resolution Chamber 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.
18.
Therefore, bearing in mind the above, the Dispute Resolution Chamber 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.
19.
Finally, the Dispute Resolution Chamber 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.
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III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Fenrando Zuqui, is accepted.
2.
The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the amount of
267,332.64 as outstanding remuneration plus interest as follows:
-
5% interest p.a. over the amount of USD 666 as from 1 December 2020 until the date of effective payment;
-
5% interest p.a. over the amount of USD 44,444.44 as from 1 January 2021 until the date of effective payment;
-
5% interest p.a. over the amount of USD 44,444.44 as from 1 February 2021 until the date of effective payment;
-
5% interest p.a. over the amount of USD 44,444.44 as from 1 March 2021 until the date of effective payment;
-
5% interest p.a. over the amount of USD 44,444.44 as from 1 April 2021 until the date of effective payment;
-
5% interest p.a. over the amount of USD 44,444.44 as from 1 May 2021 until the date of effective payment;
-
5% interest p.a. over the amount of USD 44,444.44 as from 1 June 2021 until the date of effective payment;
USD
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
4.
A fine in the amount of USD 15,000 is imposed on the respondent (art. 12 bis of the
Regulations)
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. 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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REF FPSD-2904
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).
NOTE RELATING TO THE PAYMENT OF THE FINE
Payments to FIFA should be made by wire transfer in US dollars (USD) to the following bank
account:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
Please mention the applicable reference number
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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