F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 10 March 2021

Decision of the Dispute Resolution Chamber

(DRC) Judge

passed on 10 March 2021

regarding an employment-related dispute concerning the player Adriano Fachini

BY:

Pavel Pivovarov (Russia), DRC Judge

CLAIMANT:

Adriano Fachini, Brazil

Represented by Mr. João Lobão

RESPONDENT:

GiresunSpor Kulubu Dernegi, Turkey

Represented by Mr. Atahan Sevimli

I. FACTS OF THE CASE

1. On 7 July 2019, the Brazilian player, Mr. Adriano Fachini (hereinafter: the player or the Claimant), and the Turkish club, GiresunSpor Kulubu Dernegi (hereinafter: the club or the Respondent), signed a federative contract valid as from the date of signature until 31 May 2020.

2. On 8 July 2019, the same parties also signed a supplementary contract, valid through the season of 2019/2020 (hereinafter: the employment contract).

3. In accordance with clause 6.1 of the employment contract, the club undertook to pay the player the following amounts:

a. EUR 60,000 on 6 July 2019;

b. EUR 15,000 on 31 August 2019;

c. EUR 15,000 on 30 September 2019;

d. EUR 15,000 on 31 October 2019;

e. EUR 15,000 on 30 November 2019;

f. EUR 15,000 on 31 December 2019;

g. EUR 15,000 on 31 January 2020;

h. EUR 15,000 on 28 February 2020;

i. EUR 15,000 on 31 March 2020;

j. EUR 15,000 on 30 April 2020; and

k. EUR 15,000 on 31 May 2020.

4. By the end of the employment contract, the club had still not paid the player part of his remuneration. Consequently, on 22 May 2020, the parties signed a payment agreement (hereinafter: the settlement agreement).

5. Clause 1 of the settlement agreement read that: “the club fully recognizes the expressed above and ratifies that the proceeding covenants are an integral part of the agreement, therefore, confirms that did not paid to the player part of the salary of August 2019, the salary of September 2019, October 2019, November 2019, December 2019, January 2020, February 2020, March 2020 and April 2020 on an total amount of EUR 125.000,00 (one hundred and twenty five thousand euros)”.

6. Clause 2 of the settlement agreement established, inter alia, the following:

“1. The club irrevocably assumes that owes to the player the amount better defined in clause 1 and recognizes that wishes to pay to the plater part of the outstanding amount, namely EUR 35,000 (thirty five thousand euros) in the following terms:

i) EUR 10,000 (ten thousand euros) payable by cash and that shall be at the player disposal on the signature of the present agreement (regarding part of August 2019 and part of the salary of September 2019);

ii) EUR 10,000 (ten thousand euros) that shall be received by the player no later than 30.06.2020 (regarding the remaining of September 2019);

iii) EUR 15,000 (fifteen thousand euros) that shall be received by the player no later than 20.07.2020 (regarding October 2019).

2. The club recognizes that the salary of November 2019, December 2019, January 2020, February 2020, March 2020 and April 2020 remains outstanding and that the payment dates are the ones better defined in [the employment contract] – has expressed in covenant c) are already elapsed.

[…]

5. Without prejudice of the no. 3 and 4 above, if the club fails to perform any of the payments present (namely clause 1, no. 2 and clause 2, no. 2) it irrevocably recognizes that the player is [entitled] to receive 5% interest per/year as from the agreed dates as presented in [the employment contract] – better defined in covenant c). The compensation will become immediately due if and when the club fails to comply with the present agreement with the need of any formal notice”.

7. On 16 July 2020, the Claimant put the Respondent in default of payment of EUR 105,000, corresponding to the salaries from November 2019 to April 2020, and granted the club with a 10 days’ deadline in order to remedy its default.

II. PROCEEDINGS BEFORE FIFA

8. On 28 August 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the player

9. In his claim, the player stated that the club acknowledged its default towards him by means of the settlement agreement, however, it failed to perform the financial duties concerning to the player’s salaries from November 2019 to April 2020.

10. Accordingly, the player referred to the default notice sent on 16 July 2020 and informed that the club had neither proceeded the payment nor provided him any answer whatsoever.

11. Based on the above, the player requested the payment of EUR 105,000 as outstanding remuneration, plus interest of 5% p.a. as from the due dates and until the effective payment.

b. Position of the club

12. In his reply, the club firstly referred to the COVID pandemic and stressed that “even at the hardest times the Respondent acted with perfect manner against the Claimant and tried to fulfil its obligations with pure good faith. In this direction, the Respondent signed [the settlement agreement] on 22.05.2020 just to relief the Claimant. Even so, the Claimant did not respond to the Respondent’s good faith and clearly caused an abuse of right”.

13. Furthermore, the club pointed out that it “had made a payment to the Claimant in the amount of 107.380,00 Euro and 77.000,00 TL (which corresponds to an amount of 11.135,87 Euro with the exchange rates at the date of effective payment) until today. Briefly the Respondent had paid over 118.515,87 Euro the Claimant for fulfilling its contractual obligations to the Claimant even at the said difficulties. Also the Respondent had given two promissory notes at the total amount of 25.000,00 Euro to the Claimant”.

14. Consequently, the club argued that “the Claimant can only claim 66.484,13 Euro for the whole football season of 2019/2020” and requested FIFA to “deduct all the payments which have been submitted to FIFA DRC annexed to this reply brief to deduct all the amounts states in the promissory notes which have been delivered to the Claimant and to make deduction in line with the FIFA Covid-19 Regulatory Issues dated 11 June 2020 and dismiss the claims of the Claimant”.

15. Finally, the club requested the player’s claim to be dismissed and that “the judicial costs and the attorney ship fees that the Claimant is faced shall be paid by the Claimant”.

c. The replica of the player

16. Subsequently, the player was invited to provide his comments on the alleged payments and receipts provided by the club.

17. In this regard, the player submitted, inter alia, that he did not keep any promissory note issued by the club. On the contrary, the player explained that said notes were aimed to securitize the payment of the settlement agreement and, hence, were returned to the club upon receipt of the amounts stipulated in clause 2 (1) of the settlement agreement.

18. Additionally, the player pointed out that the club acknowledged its default in the total amount of EUR 91,484.13 and explained that the difference between said amount and the one charged in his claim (i.e. the EUR 11.135,87 that the club allegedly paid to the player) corresponded to “match bonuses” and not to salaries, as claimed by the Respondent.

19. Lastly, the player concluded that the club “is now in a clear bad faith behaviour trying to convince this chamber that paid more that it assumed to have paid by transvesting the match payment [in] salary payment” and reiterated his requests for relief.

III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER (DRC) JUDGE

a. Competence and applicable legal framework

20. First of all, the Dispute Resolution Chamber Judge (hereinafter also referred to as DRC 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 28 August 2020 and submitted for decision on 10 March 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.

21. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules and observed 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 (edition February 2021), the DRC Judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a Brazilian player and a Turkish club.

22. Then, the DRC 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 Player (edition February 2021), and considering that the present claim was lodged on 28 August 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

23. 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 he may consider evidence not filed by the parties.

24. 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

25. His competence and the applicable regulations having been established, the DRC Judge entered into the merits of the dispute. In this respect, the DRC Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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

26. The foregoing having been established, the DRC Judge moved to the substance of the matter, and firstly took note of the fact that the club referred to the COVID-19 pandemic in order to justify the lack of payment of the player’s remuneration.

27. Having said this, the DRC Judge highlighted 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.

28. In this context, the DRC Judge noted that the club did not file together with its reply any documentation pertaining to the question of the COVID-19 pandemic. Consequently, the DRC Judge underlined that the club failed to meet its burden of proof in accordance with the aforementioned art. 12 par. 3 of the Procedural Rules insofar as 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.

29. Additionally, the DRC Judge wished to outline that he could not uphold the argumentation of the club since almost the totality of the relevant payment in dispute fell due before the outbreak of the COVID-19 pandemic. Further, the DRC Judge also stressed that the payments were renegotiated in the settlement agreement and, even so, a significant part of the remuneration remained unpaid.

30. At the same time, the DRC Judge highlighted that the settlement agreement was executed after the outbreak of the COVID-19 pandemic, and thus he found that the position of the Respondent could not be upheld.

31. On account of the aforementioned considerations, the DRC Judge observed that the parties strongly dispute the quantum due by the club to the player as outstanding remuneration.

32. Accordingly, the DRC Judge noted that the club acknowledged its default of EUR 66,484.13, however it argued that it had already paid the amount of EUR 13,515.87 to the player, as well as it supposedly delivered two promissory notes in the total of EUR 25,000.

33. In this respect and in light of the documentation brought forward by the parties, the DRC Judge referred to the principle of the burden of proof and concluded that the club was not capable of demonstrating that the amounts indicated in its reply were dully delivered to the player in consideration of his salaries from November 2019 to April 2020.

34. Having noted the above and due to the lack of evidence capable of rebutting the player’s allegations, the DRC Judge decided that he could not uphold the club’s requests regarding the deductions to be applied over the outstanding remuneration as requested by the player.

35. Therefore, the DRC Judge concluded that, in accordance with the general principle legal of pacta sunt servanda, the club has to pay to the player the total of EUR 105,000.

36. Lastly, taking into consideration the player’s request, the DRC Judge decided to award the player 5% interest p.a. on the amount requested as from one day after the date when they should have been paid, until the date of effective payment.

ii. Art. 12bis of the Regulations

37. In continuation, the DRC 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.

38. To this end, the DRC Judge confirmed that the player put the club in default of payment of the amounts sought, which had fallen due form more than 30 days, and granted the club with 10 days to cure such breach of contract.

39. The DRC 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 and bearing in mind that the club is a repeat offender, the DRC Judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.

40. Furthermore, considering the amount due of EUR 105,000, the DRC Judge regarded a fine amounting to CHF 45,000 as appropriate and hence decided to impose said fine on the club.

41. In this connection, the DRC Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

iii. Compliance with monetary decisions

42. Finally, taking into account the consideration the Regulations, the DRC Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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.

43. In this regard, the DRC 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 and for the maximum duration of three entire and consecutive registration periods.

44. Therefore, bearing in mind the above, the DRC Judge 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

45. The DRC Judge recalled that the above-mentioned bans 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.

46. Lastly, the DRC Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

47. The DRC Judge referred to article 18 par. 2 of the Procedural Rules, according to which “DRC proceedings relating to disputes between clubs and players in relation to the maintenance of contractual stability as well as international employment related disputes between a club and a player are free of charge”. Accordingly, the DRC Judge decided that no procedural costs were to be imposed on the parties.

48. Likewise and for the sake of completeness, the DRC Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. The claim of the Claimant, Adriano Fachini, is accepted.

2. The Respondent, Giresunspor Kulübü Dernegi, has to pay to the Claimant, the amount of EUR 105,000 as outstanding remuneration plus 5% interest p.a. as follows:

o On EUR 15,000 as from 1 December 2019 until the date of effective payment;

o On EUR 15,000 as from 1 January 2020 until the date of effective payment;

o On EUR 15,000 as from 1 February 2020 until the date of effective payment;

o On EUR 15,000 as from 1 March 2020 until the date of effective payment;

o On EUR 15,000 as from 1 April 2020 until the date of effective payment;

o On EUR 15,000 as from 1 May 2020 until the date of effective payment; and

o On EUR 15,000 as from 1 June 2020 until the date of effective payment.

3. 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.

4. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

5. 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.

6. The Respondent is ordered to pay a fine in the amount of CHF 45,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the following bank account with reference to case no. 20-01219:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A8.

7. In the event that the fine indicated in point 6 above is not paid by the Respondent within the stated time limit, the present matter shall be submitted to the FIFA Disciplinary Committee for consideration and a formal decision.

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 | psdfifa@fifa.org | T: +41 (0)43 222 7777