F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 27 January 2021

Decision of the

DRC Judge

passed on 27 January 2021,

regarding an employment-related dispute concerning the player Emanuel Raul Bocchino

BY:

Alexandra Gómez Bruinewoud (Netherlands / Uruguay), DRC Judge

CLAIMANT:

Emanuel Raul Bocchino, Argentina

Represented by Mr Agustín Freddi

RESPONDENT:

Alki Oroklini FC, Cyprus

Represented by Mr George Christofides

I. FACTS OF THE CASE

1. On 24 July 2019, the Argentine player, Emanuel Raul Bocchino, (hereinafter: the Claimant or Player), and the Cypriot club, Alki Oroklini FC, (hereinafter: the Respondent or Club) concluded an employment contract valid as from the date of signature until 31 May 2020 (hereinafter: the Contract), pursuant to which the Respondent undertook to pay the Claimant 9 monthly instalments of EUR 200 net each, starting from 30 September 2019.

2. Clause 1.3.1 para 2 of the contract states that: “All taxes payable to the Tax Department, as per the applicable legislation, shall be paid by the Club”.

3. On the same date, the parties concluded a separate agreement, titled “Image Rights Contract”, whose subject-matter was the license of the image rights of the contract of the player in favour of the contracting club.

4. In accordance with Exhibit 1 to the Image Rights Contract, the club undertook to pay to the player an annual amount of EUR 23,850 net, payable in 9 equal instalments of EUR 2,650 each, starting from 30 September 2019.

5. By means of his letter dated 11 June 2020, notified to the club on 18 June 2020, the player put the club in default of payment of the salaries of March 2020 (partially), April and May 2020, granting the club a 12 days’ deadline to remedy the default.

6. By means of its letter dated 22 June 2019, the club replied to the notice of the player, stating –inter alia – the following: “As you know on the 12.3.2020 Cyprus Football Association suspended all football activities due to Covid-19 which was declared universally by WHO as pandemia. From thereon all football activities were cancelled and suspended and CFA on the 15.5.2020, after FIFA pronounced force majeure situation, finally decided to cease, and cancel season 2019-2020 due to the pandemic”. […] “We have been informed that the Club has completely performed payments until 15.3.2020 by paying the due amount on 19.5.2020”.

7. The player replied thereto via his letter dated 9 July 2020, whereby the latter put the club in default of payment, again, of the salaries of March 2020 (partially), April and May 2020, in the amount of EUR 7,050, granting the club a 10 days’ deadline to remedy the default; however, to no avail.

8. On 16 August 2020, the Claimant lodged a claim against the Respondent in front of FIFA for outstanding remuneration in the amount of EUR 7,050, plus 5% p.a. as from the corresponding due dates until the date of effective payment, broken down by the Claimant as follows:

 EUR 1,350 corresponding to the unpaid part of the salary of March 2020;

 EUR 2,850 corresponding to the salary of April 2020;

 EUR 2,850 corresponding to the salary of May 2020.

9. In addition, the player requested the club to be ordered to provide him with the corresponding tax certificates.

10. In his claim, the Claimant explained that the Respondent used the situation created upon the Covid-19 outbreak to avoid paying his contractual entitlements. In this respect, the player argued that the Covid-19 pandemic is an external factor whereon the Respondent cannot base its defence in order to not comply with its financial obligations towards the player.

11. Moreover, the Claimant held that, despite the suspension of the league, he kept training, following the physical activities sent to him by the physical trainer.

12. Furthermore, the Claimant argued that the behaviour of the Respondent was not in line with the Covid Guidelines issued by FIFA, insofar the club adopted the unilateral decision of not paying the player’s contractual entitlements.

13. Despite having invited to do so, no correspondence has been received from the club, Alki Oroklini FC, in response to the claim.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at stake. In this respect, the DRC judge took note that the present matter was submitted to FIFA on 16 August 2020 and decided on 27 July 2021. Thus, the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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. Furthermore, the DRC judge analysed which edition of the Regulations on the Status and Transfer of Players 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 par. 2 of the said Regulations and considering that the present claim was lodged in front of FIFA on 16 August 2020, the June 2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. 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 DRC 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.

5. In this respect, the DRC judge acknowledged that, on 24 July 2019, the Claimant and the Respondent concluded an employment contract valid as from the date of signature until 31 May 2020, pursuant to which the Respondent undertook to pay to the Claimant 9 monthly instalments of EUR 200 net each, starting from 30 September 2019, as well as a separate agreement, titled “Image Rights Contract”, in accordance to which the Respondent undertook to pay to the Claimant an annual amount of EUR 23,850 net, payable in 9 equal instalments of EUR 2,650 each, starting from 30 September 2019.

6. Moreover, the DRC judge took that on 11 June 2020 and 9 July 2020, having the Respondent not fulfilled its financial obligation towards the Claimant, the latter put the Respondent in default of payment of the salaries of March 2020 (partially), April and May 2020, for a total amount of EUR 7,050, and granted it respectively twelve and ten days to remedy the default.

7. Consequently, the DRC Judge concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligation(s).

8. Having recalled the above, the DRC judge observed that, the Claimant, in his claim lodged on 16 August 2020, claimed outstanding remuneration in the total amount of EUR 7,050, plus 5% p.a. as from the corresponding due dates until the date of effective payment as well as the club to be ordered to provide him with the corresponding tax certificates.

9. In continuation, the DRC judge took note that despite having been invited to do so, the Respondent failed to present its response to the claim of the Claimant. By not presenting its position to the claim, the DRC judge was of the opinion that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of the documentation already on file, in other words, upon the statements and documents presented by the Claimant.

11. Bearing in mind the foregoing, the DRC judge considered the documentation on file and deemed that the Respondent did not fulfill its obligations as per the contracts concluded by the parties in accordance with the general legal principle of “pacta sunt servanda”.

12. In addition, bearing in mind the considerations under numbers II./6. and II./7. above the DRC Judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

13. Consequently, the DRC judge decided that the Respondent is liable to pay to the Claimant the remuneration that was outstanding at the time of the claim was lodged, i.e. the amount of EUR 7,050 net, corresponding to the salary debt payable to the Claimant.

14. In addition, taking into consideration the claim lodged by the Claimant, as well as the constant practice of the DRC, the DRC judge decided to award the latter 5% interest p.a. on the above mentioned amount as follows.

 Over the amount of EUR 1,350 as of 1 April 2020 until the date of effective payment;

 Over the amount of EUR 2,850 as of 1 May 2020 until the date of effective payment;

 Over the amount of EUR 2,850 as of 1 June 2020 until the date of effective payment.

15. In continuation, taking into account the consideration under number II./12. above, 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.

16. The DRC Judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, and in the absence of the circumstance of repeated offence, the DRC Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

17. What is more, the DRC Judge decided to accept the player’s request to be provided with the tax certificates. In this respect, the DRC Judge referred to the relevant clauses in the contract, which clearly stipulate that the amounts to paid by the club to the player are net amounts. As a result, the DRC Judge deemed that the player had a justified reason to request the tax certificates, proving that the relevant taxes had been paid to the competent Tax Authorities, as the amounts awarded as per this decision are also to be considered net amounts.

18. Furthermore, taking into account the consideration under number II./3. above, the DRC judge 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 amount of outstanding remuneration and/or compensation in due time.

19. 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.

20. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amount 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.

21. 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 amount, in accordance with art. 24bis par. 3 of the Regulations.

22. Lastly, the DRC Judge eferred 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.

23. The DRC judge concluded his deliberations in the present matter by establishing that the claim lodged by the Claimant is accepted.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Emanuel Raul Bocchino, is accepted.

2. The Respondent, Alki Oroklini FC, has to pay to the Claimant, the following amount:

- EUR 7,050 net as outstanding remuneration plus 5% interest p.a. calculated as follows:

 Over the amount of EUR 1,350 as of 1 April 2020 until the date of effective payment;

 Over the amount of EUR 2,850 as of 1 May 2020 until the date of effective payment;

 Over the amount of EUR 2,850 as of 1 June 2020 until the date of effective payment.

3. The Respondent is ordered to provide the Claimant with the relevant certificate attesting the payment of taxes to the competent authorities in the amount awarded under point 2. above. In the event of no compliance by the Respondent, the the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

4. A warning is imposed on the Respondent.

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.

6. 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).

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 Dispute Resolution Chamber:

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