FIFA - Decisiones estatuto del jugador - Butorovic 16082022

REF FPSD-6593

Decision of the Players’ Status Chamber passed on 16 August 2022 regarding a contractual dispute concerning the coach Danilo Butorović BY: Thulaganyo Gaoshubelwe (South Africa)

CLAIMANT:

Danilo Butorović, Croatia Represented by Radić & Radić Ltd.

RESPONDENT:

Beijing Guoan FC, China PR Represented by Great Wall Law Firm Page 2

REF FPSD-6593

I. Facts of the case

1. On 6 January 2021, the Croatian coach, Danilo Butorović (hereinafter: the Claimant), and the Chinese club Beijing Guoan FC (hereinafter: the Respondent) signed an employment contract valid as from 1 January 2021 until 31 December 2022.

2. On 3 September 2021, the Respondent purchased flight tickets for the Claimant in the amount of RMB 39,727. On account of personal reasons, the latter requested a rescheduling of said flight tickets, resulting in an alleged price increase of said tickets to

RMB 69,185.

3. On 11 January 2022, the Claimant and the Respondent (hereinafter jointly: the Parties) concluded a settlement agreement (hereinafter: the Settlement Agreement) by way of which the aforementioned employment contract was mutually terminated.

4. In accordance with art. 2 of the Settlement Agreement, the Respondent undertook to pay the Claimant, inter alia, two separate payments of EUR 20,833, due on 30 January 2022, and EUR 62,499, due on 28 February 2022.

5. Furthermore, in accordance with art. 3 of the Settlement Agreement, the Respondent undertook to pay the Claimant bonuses in the amount of EUR 33,000 by 31 March 2022.

6. In accordance with the Settlement Agreement, all aforementioned amounts are net of all

taxes.

7. Moreover, in accordance with art. 4 of the Settlement Agreement, the Parties agreed upon an applicable interest rate of 8% p.a. payable in case of delay of any instalments stipulated under the Settlement Agreement.

8. By correspondence dated 11 February 2022, the Claimant put the Respondent in default of payment of the first instalment under the Settlement Agreement, granting a 10-day deadline for the Respondent to comply with its financial obligations.

9. By correspondence dated 5 April 2022, the Claimant put the Respondent in default of payment of all amounts due under the Settlement, granting a 10-day deadline for the Respondent to comply with its financial obligations.

10. On 18 April 2022, the Respondent informed the Claimant that it made a payment in the amount of EUR 20,833, which had fallen due on 30 January 2022.

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II. Proceedings before FIFA

11. On 1 July 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the Parties is detailed in continuation.

a. Position of the Claimant

12. According to the Claimant, the Respondent failed to comply with its obligations under the Settlement Agreement by not paying the two stipulated instalments of EUR 62,499 and

EUR 33,000.

13. As such, the Claimant requested an overdue amount of EUR 95,499, with an applicable interest rate of 8% p.a. as from the following due dates:

1. On the amount of EUR 62,499, as from 1 March 2022 until the date of effective payment;

2. On the amount of EUR 33,000, as from 1 April 2022 until the date of effective payment.

14. Furthermore, the Claimant requested the application of art. 8 of Annexe 2 of the Regulations on the Status and Transfer of Players.

b. Position of the Respondent

15. In its reply to the claim, the Respondent acknowledged the outstanding amounts, justifying the non-payment thereof with the financial difficulties caused by COVID-19.

16. Furthermore, the Respondent argued that the contractually stipulated interest rate of 8% p.a. is excessive and unreasonable, based on the fact that it exceeds the standard rate granted by FIFA and in consideration of the circumstances caused by force majeure, more specifically, COVID-19.

17. As such, the respondent requested that a new deadline shall be set for the payment of the overdue instalments, that no interest shall apply on any amounts awarded, that no costs shall be payable in the matter at hand, and that no sporting sanctions be imposed on the Respondent.

18. Lastly, the Respondent requested that the amount of RMB 29,458 shall be deducted from any outstanding remuneration as a result of the price difference for the change in flight tickets that were originally booked on 3 September 2021.

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III. Considerations of the Players’ Status Chamber

a. Competence and applicable legal framework

19. First of all, the Single Judge of the Players’ Status Chamber (hereinafter also referred to as Single 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 1 July 2022 and submitted for decision on 16 August 2022. Taking into account the wording of art. 34 of the June 2022 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.

20. Subsequently, the Single Judge referred to art. 2 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. c) of the

Regulations on the Status and Transfer of Players (July 2022 edition), he is competent to deal with the matter at stake, which concerns a contractual dispute with an international dimension between a Croatian coach and a Chinese club.

21. Subsequently, the Single 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 Players (July 2022 edition), and considering that the present claim was lodged on 1 July 2022, the July 2022 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

22. 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 he 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

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

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1. Main legal discussion and considerations

24. The foregoing having been established, the Single Judge first recalled that the Respondent acknowledged the non-payment of the allegedly overdue amounts, in total,

EUR 95,499. As such, the former established that his task was to determine, based on the evidence presented by the Parties, whether the Respondent had a valid justification for not having complied with its financial obligations.

25. In this respect, the Single Judge took note of the argumentation presented by the Respondent, in which the latter argued that the delay in paying the respective instalments was justifiable as a result of the financial difficulties caused to it by force majeure, more specifically, COVID-19.

26. Having analysed the argumentation and all evidence submitted in relation thereto carefully, the Single Judge wished to point out that the Respondent provided no evidence corroborating that it, indeed, suffered from financial difficulties caused by force majeure, thereby failing to meet the burden of proving that payments under the Contract could be delayed or challenged.

27. Thereby, the Single Judge concluded that, as no situation of force majeure could be established in the present matter, the Respondent has to comply with all payments as stipulated by the Settlement Agreement.

28. Furthermore, the Single Judge noted that the Respondent contested the reasonableness of the contractually stipulated interest rate of 8% p.a., which was established under the Settlement Agreement to apply in case of delay in paying any of the amounts stipulated thereunder.

29. In this respect, the Single Judge referred to his longstanding jurisprudence which has demonstrated on several occasions that interest rates of up to 18% p.a. are applicable in accordance with the specific facts of each case.

30. As such, and in consonance with the fact that no case of force majeure could be established in the case at hand, the Chamber concluded that the interest rate of 8% p.a. which was contractually stipulated under art. 4 of the Settlement Agreement satisfied the criteria of proportionality and reciprocity, in accordance with his longstanding jurisprudence.

31. Lastly, the Single Judge took note of the argumentation submitted by the Respondent in

respect of the alleged difference in price to the flight tickets the latter had booked for the Claimant on 3 September 2021. Page 6

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32. In this respect, the Single Judge wished to point out that the Respondent provided no evidence of such difference in price, only two different itineraries that contained no information as to the cost actually incurred for those flights, thereby failing to meet the burden of proving that any such amount could potentially fall due.

33. In view of the foregoing and bearing in mind the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by Parties in good faith, the Respondent is held liable to pay the Claimant the outstanding amounts deriving from the Settlement Agreement, namely EUR 95,499, as well as interest at the rate of 8% p.a. as stipulated under art. 4 of said Agreement. ii. Consequences

34. Having stated the above, the Single Judge turned his attention to the question of the consequences of such unjustified breach of contract committed by the Respondent.

35. The Single Judge observed that the financial obligations deemed as outstanding the present case correspond to EUR 62,499 plus EUR 33,000, in line with the Settlement Agreement signed by the Parties.

36. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the Single Judge decided that the Respondent is liable to pay the Claimant the amounts claimed as outstanding under the Settlement Agreement, in total EUR 95,499, as detailed above.

37. In addition, taking into consideration the Claimant’s requested as well as the constant practice of the Single Judge in this regard, the latter decided to award the Claimant interest at the rate of 8% p.a. on the outstanding amounts as from the following dates: 1. on the amount of EUR 62,499, as from 1 March 2022 until the date of effective

payment; 2. on the amount of EUR 33,000, as from 1 April 2022 until the date of effective payment. iii. Art. 7 Annexe 2 of the Regulations

38. In continuation, the Single Judge referred to art. 7 of Annexe 2 of the Regulations, which stipulates that any club found to have delayed a due payment towards a coach for more than 30 days without a prima facie basis may be sanctions in accordance with par. 4 of said provision.

39. To this end, the Single Judge confirmed that the Claimant put the Respondent in default of payment of the amounts sought on the date of 5 April 2022, and that, of those amounts,

Page 7 REF FPSD-6593 only EUR 62,499 had been overdue for more than 30 days. Moreover, the Single Judge confirmed that the Claimant granted the Respondent a 10-day deadline to cure such breach.

40. Accordingly, it was established that the Respondent had delayed a due payment without a prima facie contractual basis. It followed that the criteria enshrined in art. 7 of Annexe 2 of the Regulations were partially met in the case at hand.

41. The Single Judge further established that, by virtue of art. 7 par. 4 of Annexe 2 of the Regulations, he had competence to impose sanctions on the Respondent. On account of the above and bearing in mind that this was the third offence committed by the Respondent within the last two years (first offence: FPSD-4367/pam, passed on 26 January 2022; second offence: FPSD-4949/lud, passed on 24 March 2022), the Single Judge decided to impose a fine in the amount of USD 7,500, in accordance with lit. c) of the above-mentioned provision.

42. In this connection, the Single Judge wished to highlight that a repeated offence will be

considered as an aggravating circumstance and lead to a more severe penalty in accordance with art. 7 par. 6 of Annexe 2 of the Regulations. iv. Compliance with monetary decisions

43. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 8 par. 1 and 2 of Annexe 2 of the Regulations, which stipulate that, with his decision, he 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.

44. In this regard, he 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.

45. Therefore, bearing in mind the above, the Single Judge decided that the Respondent must pay the full amount due (including all applicable interest) to the Claimant within 45 days of notification of the decision, failing which, at the request of the Claimant, 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 Respondent in accordance with art. 8 par. 2, 4, and 7 of Annexe 2 of the

Regulations. Page 8

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46. The Respondent shall make full payment (including all applicable interest) to the bank account provided by the Claimant in the Bank Account Registration Form, which is attached to the present decision.

47. 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. 8 par. 8 of Annexe 2 of the Regulations.

d. Costs

48. 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, he decided that no procedural costs were to be imposed on the Parties.

49. 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.

50. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief made by any of the Parties.

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IV. Decision of the Players’ Status Chamber

1. The claim of the Claimant, Danilo Butorović, is accepted.

2. The Respondent, Beijing Guoan FC, has to pay to the Claimant the following amounts: - EUR 62,499 as outstanding amount plus 8% p.a. as from 1 March 2022 until the date of effective payment; - EUR 33,000 as outstanding amount plus 8% p.a. as from 1 April 2022 until the date of effective payment.

3. The Respondent is ordered to pay a fine of USD 7,500 to FIFA within 30 days as from the notification of this decision to the following bank account, with clear reference to the case

FPSD-6593: UBS Zurich Account number 230-366677.61N (FIFA Players’ Status) Clearing number 230

IBAN: CH12 0023 0230 3666 7761 NSWIFT: UBSWCHZH80A Please mention the applicable reference number

4. Full payment of the amounts mentioned in point 2. (including all applicable interest) shall be made to the bank account indicated in the enclosed Bank Account Registration Form.

5. Pursuant to art. 8 of Annexe 2 of the Regulations on the Status and Transfer of Players if full payment of the amounts mentioned in point 2. (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.

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6. The consequences shall only be enforced at the request of the Claimant in accordance art. 8 par. 7 and 8 of Annexe 2 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 Page 11

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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).

CONTACT INFORMATION

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