F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 9 December 2021

Decision of the

DRC Judge

passed on 9 December 2021

regarding an employment-related dispute concerning the player Hugo Roberto Colace

BY:

Daan de Jong (The Netherlands), DRC Judge

CLAIMANT:

Hugo Roberto Colace, Italy

Represented by Mr Ricardo Frega Navia

RESPONDENT:

Mons Calpe SC, Gibraltar

I. FACTS OF THE CASE

1. As a preliminary issue, it must be noted that, on 7 June 2018, the Dispute Resolution Chamber (hereinafter: the Chamber or the DRC) rendered a decision (ref no. 18-00168) as regards an employment related dispute arisen between the Italian player, Hugo Roberto Colace (hereinafter: the player or the Claimant), and the Gibraltarian club, Mons Calpe SC (hereinafter: the club or the Respondent), which was notified to the said parties on 19 June 2018, and whereby the DRC condemned the club to pay to the player the following amounts:

- GIP 1,800 as outstanding remuneration, plus 5% interest p.a. as from 1 June 2017 until the date of effective payment;

- GIP 1,800 and EUR 90,000 as compensation for breach of contract, plus 5% interest p.a. as from 24 January 2018 until the date of effective payment.

2. Thereafter, the Claimant allegedly urged the Respondent to comply with the content of the aforementioned decision; however, to no avail.

3. The FIFA Disciplinary Committee (hereinafter also referred as: DisCo), upon the Claimant’s request, initiated proceedings aimed at the execution of the said decision (Ref.: 190.258 PST GIB ZH) and passed a decision on 29 April 2019, in accordance with which the Respondent was requested to comply with the decision passed by the DRC.

4. In this context, the Claimant explained that the parties concluded a verbal settlement agreement, whereby the Respondent undertook to pay to the Claimant the amounts of GIP 1,800 as well as the amount of EUR 90,000, the latter of which was payable in equal monthly instalments of EUR 10,000 each.

5. In view of the aforementioned, the Claimant informed DisCo about the settlement agreement concluded between the parties and, consequently, the said proceedings were closed.

6. On 12 August 2020, the player lodged a claim against the club before FIFA, requesting outstanding remuneration in the amount of GIP 1,800 and EUR 80,000, plus 5% interest p.a. as follows:

- on the amount of GIP 1,800 as from 1 June 2017;

- on the amount of EUR 80,000 as from 24 January 2018.

7. In his claim, the Claimant argued that the Respondent failed to comply with the settlement agreement, insofar the Respondent only paid one instalment of EUR 10,000; hence, failing to pay the amounts of GIP 1,800 and EUR 80,000.

8. In its reply to the claim, the Respondent acknowledged having concluded a verbal settlement agreement with the Claimant. In particular, the Respondent explained that, on 14 November 2019, the parties agreed that the Respondent would pay to the Claimant the amount of EUR 50,000.

9. Having explained the above, the Respondent wished to highlight that it is acting in good faith and that, despite no written settlement having been concluded between the parties, the Respondent did undertake to make a payment of EUR 50,000 in favour of the Claimant in order to settle the dispute.

10. Regarding the amounts that the Claimant argued that were payable, i.e. GIP 1,800 and EUR 90,000, the Respondent rejects said allegation and stated that the burden of the proof corresponds to the Claimant and that the latter has not proved that such amounts were agreed as part of the settlement settlement agreement.

11. The Respondent provided a Whatsapp screenshot as proof of having concluded such an agreement with the Claimant. The said Whatsapp message reads as follows: “EUR 50,000 and we close everything. And I give you the contract as well. Until Sunday, when I leave, after that we won´t speak anymore. And we will be in peace and I look for another club” (translation from the original text in Spanish).

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analyzed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 12 August 2020 and submitted for decision on 9 December 2021. Taking into account the wording of art. 21 of the June 2020 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 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. In continuation, the DRC judge analysed which regulations 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 2 of the Regulations on the Status and Transfer of Players (October 2020 edition), and considering that the claim was lodged on 12 August 2020, the June 2020 edition of the aforementioned regulations (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 DC 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 it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Having said that, the DRC judge acknowledged that the Claimant is requesting outstanding remuneration as per an oral settlement agreement concluded with the Respondent in connection with a case that was decided upon by the DRC on 7 June 2018, and that was also subject of execution proceedings at Disciplinary after the Respondent’s non-compliance with the decision taken by the DRC.

6. In this respect, the DRC judge observed that, as acknowledged by both parties, the disciplinary proceedings ended upon receipt of a notification from the Claimant whereby the latter communicated to the Disciplinary Committee that the parties had reached an amicable settlement to the dispute.

7. Hence, -pointed out the DRC judge- the disciplinary proceedings were closed. In this respect, the DRC judge added that, -as indicated by the Respondent- the Claimant having confirmed that the parties had reached a settlement agreement once the decision of the DRC had already been passed and notified, the said decision was no longer enforceable and no amounts therefrom could be requested by the Claimant before the FIFA Disciplinary Committee.

8. As to the conclusion of the alleged verbal settlement agreement, the DRC judge concluded that the dissenting point lies on the fact that, whereas the Claimant affirms that the Respondent undertook to pay to him the amounts of GIP 1,800 and EUR 90,000, from which the Respondent allegedly only paid EUR 10,000; the Respondent maintains that the amount payable as per the verbal settlement agreement is only EUR 50,000, amount that the Respondent admits owing to the Claimant.

9. In this context, the DRC judge stressed that the Claimant failed to provide any evidence regarding the conclusion of such verbal agreement. Nevertheless, -continued the DRC judge- insofar the Respondent confirmed having concluded a verbal settlement agreement, it is undisputed that such agreement was concluded.

10. The above being clarified, the DRC judge turned his attention to the amount due to the Claimant as per the verbal settlement agreement and concluded that the Claimant did not provide any evidence that would demonstrate that the amounts due to him are GIP 1,800 and EUR 90,000, despite the Claimant carrying the burden of the proof to demonstrate so, ex. art. 12.3 of the Procedural Rules.

11. Nevertheless, the DRC judge observed that the Respondent rejected being in default of payment regarding the amounts requested by the Claimant, but admitted owing the amount of EUR 50,000 to the player. In this regard, the DRC judge further observed that the Respondent provided a Whatsapp conversation allegedly maintained with the Claimant whereby the player himself allegedly suggested to be paid an amount of EUR 50,000 as final settlement amount.

12. In this context, the DRC judge concluded that, given the impossibility of assessing whether the verbal settlement agreement was concluded in the terms presented by the Claimant, considering the total absence of evidence, the only legal basis whereupon the DRC judge could decide is the debt recognition statement provided by the Respondent in its statement or reply, in accordance with which the Respondent admitted being in default of payment of an amount of EUR 50,000.

13. In view of the above, the DRC judge concluded that the Respondent is ordered to pay to the Claimant EUR 50,000 as outstanding remuneration, in accordance with the general legal principle of “pacta sunt servanda”.

14. In addition, taking into account the Claimant’s claim, as well as the DRC’s longstanding jurisprudence in this respect, the DRC judge decided to award the Claimant interest of 5% p.a. as from the date on which the claim was lodged, i.e. 12 August 2020, until the date of effective payment.

15. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to para. 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.

16. 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.

17. Therefore, bearing in mind the above, the DRC 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.

18. 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 amounts, in accordance with art. 24bis par. 3 of the Regulations.

19. The DRC judge concluded his deliberations in the present matter stipulating that any further claim lodged by the Claimant is rejected. In conclusion, the Claimant’s claim is partially accepted.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Hugo Roberto Colace, is partially accepted.

2. The Respondent, Mons Calpe SC, has to pay to the Claimant, the following amount:

- EUR 50,000 as outstanding remuneration plus 5% interest p.a. as from 12 August 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. 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

5. 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).

6. 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.

7. The decision is rendered free of 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

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