DRC Overdue Payables
Texto da decisão
REF FPSD-6646
Decision of the
Dispute Resolution Chamber
passed on 14 September 2022
regarding an employment-related dispute concerning the player Chidozie
Collins Awaziem
BY:
Gonzalo de Medinilla (Spain)
CLAIMANT:
Chidozie Collins Awaziem, Nigeria
Represented by Alfonso León Lleó
RESPONDENT:
Boavista FC, Portugal
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REF FPSD-6646
I. Facts of the case
1.
On 4 September 2020, the Nigerian player Chidozie Collins Awaziem (hereinafter: the
Claimant) and the Portuguese club Boavista FC (hereinafter: the Respondent) concluded
two employment contracts.
2.
The first employment contract (hereinafter: the First Contract) was valid from 4 September
2020 until 30 June 2021
3.
Clause 3 of the First Contract reads inter alia as follows:
“5. In addition to the remunerations referred to in point 1 the PLAYER will be entitled to the
following net and cumulative additional remunerations
a) if he plays in 22 official matches, more than 45 minutes, in the main team of the BOAVISTA,
SAD - 50.000,00 euros
b) If the CLUB wins the Portuguese first football league. 30.000,00 euros;
c) If qualified for the Europa league -10.000,00 euros; d) If qualified for the Champions League - 30 000,00 euros;
e) lf it wins the Taca of the League -20 000,00 euros;
f) If it wins the Taca from Portugal. 20.000,00 euros.
6. Unless otherwise specified, bonuses are paid at the end of the following month in which they
are earned, and if the Player leaves the CLUB during the season, bonuses for CLUB sports
results achieved at the end of that season will be paid in proportion to his employment in the
respective season”
4.
The second employment contract (hereinafter: the Second Contract) is valid from 1 July
2021 until 30 June 2025.
5.
Clause 3 of the Second Contract reads inter alia as follows:
“1. BOAVISTA, SAD hereby undertakes to pay the PLAYER the following annual net
remuneration: --- i) 2021/2022 season - 600.000,00 euros (…); --2. The value of the sports season will be paid in 10 (ten) monthly installments, to be paid by
the 5th day of each month, between August and May”
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6.
On 9 September 2021, the Claimant was temporarily transferred to the Turkish club
Alanyaspor.
7.
On 2 May 2021, the Claimant put the Respondent in default for the payment of EUR 86,000
and gave a deadline of 10 days to comply, to no avail.
8.
On 12 May 2022, the Respondent replied to the previous correspondence stating that the
amounts were not due.
II. Proceedings before FIFA
9.
On 6 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
10. According to the Claimant, in August 2021 the Respondent paid EUR 40,000 regarding
part of the salary of August 2021. The Claimant deems that the Respondent still owes him
the amount of EUR 36,000 as residual part of the aforementioned salary of August 2021
and to the proportional part of the salary of September 2021 before his loan to
Alanyaspor.
11. The Claimant further states that during season 2020/2021 he played 29 official matches
and therefore he fulfilled a milestone of appearances that entitled him to receive EUR
50,000, which remains unpaid too.
12. The Player provides evidence of having “played 27 games, and in only two of which he played
less than 45 minutes”. Thus, the Claimant sustains that “there should be no doubt concerning
the fact that the Player effectively played more than 22 official matches for at least 45 minutes
during the season 2020/2021.”
13. The Claimant states that the Respondent provided unacceptable arguments for the nonpayment of the said amounts.
14. In the view of the Claimant, in Clause 3 of the First Contract, “the word "cumulative" carries
the interpretation which implies that each event foreseen in that contractual provision triggers
the payment of an additional remunerations on independently manner. However, they may
accumulate as they occur.”
15. As for the argument of the Respondent regarding his salary of August 2021, the Claimant
states that, the last match he played before the loan agreement was on 28 August 2021.
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Thus, the Claimant reiterates that he is entitled to the prorata salary until 9 September
2021.
16. The Claimant files the following requests for relief:
1. To accept this claim.
2. To condemn Boavista to pay in favour of the Player the total amount of EUR 86,000.00
(eighty-six thousand euros), plus the applicable interest, according to the following description:
2.1. EUR 50,000.00 (fifty thousand euros) related to the bonuses for the 2020/2021 season
provided in the First Employment Contract, plus the corresponding interest of five percent (5%)
per annum applicable to the amount due as from 1 January 2021;
2.2. EUR 20,000.00 (twenty thousand euros) related to part of the August 2021 salary provided
in the Second Employment Contract, plus the corresponding interest of five percent (5%) per
annum applicable to the amount due as from 5 August 2021;
2.3. EUR 16,000.00 (twenty thousand euros) related to part of the September 2021 salary
provided in the Second Employment Contract, plus the corresponding interest of five percent
(5%) per annum applicable to the amount due as from 5 September 2021;
b. Position of the Respondent
17. According to the Respondent, the intention of the parties in Clause 3 of the Contract was
“that the additional remunerations should be paid jointly only in case of fulfilment of the entire
and all conditional events and goals. if the entire conditional events and goals weren't
achieved, no part of them should be paid to the player.”
18. The Respondent reiterates that the “Player was in reality at Boavista's disposal only until 20
August 2021”.
19. Thus, the Respondent deems that it does not owe the claimed amounts.
20. Subsidiarily, the Respondent states that it had been greatly affected by the Covid-19.
21. Furthermore, the Respondent states that it went through a Special Revitalization Process
and for the season 2020/2021 lost EUR 12,691,188.38. Thus, in the Respondent’s view “the
Club's failure to fulfil its obligations occurred through no fault of its own”.
22. The Respondent considers that “the obligation to pay these amounts should be extinguished
by an event that should not be imputed to the Club, since this occurred with the unfolding of
the Covid -19 pandemic.”
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23. The Respondent further refers to several provisions of the Portuguese Civil Code.
24. The Respondent filed the following requests:
The Claim shall be rejected;
The Respondent shall not be condemned to pay to the Claimant the amount of EUR 86,000 nor
any other amount that DRC considers appropriate.
The Respondent shall not be sanctioned with sportive sanctions, namely with the ban from
registering any new players, either nationally or internationally.
The costs shall be imposed to the Claimant
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
25. First of all, the Dispute Resolution 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 6 July 2022 and submitted for
decision on 14 September 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.
26. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) of the
Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with
art. 22 par. 1 lit. b) 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 an
employment-related dispute with an international dimension between a Nigerian player
and a Portuguese club.
27. 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 6 July 2022, the same edition of said
regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
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28. 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 it 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
29. His competence and the applicable regulations having been established; the Single Judge
entered into the merits of the dispute. In this respect, the Single Judge started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Single 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.
i. Main legal discussion and considerations
30. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent as per the contracts signed between the parties,
namely an appearance bonus and a partial monthly remuneration for the months of
August and September 2021.
31. In this context, the Single Judge acknowledged that his task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact
remained unpaid by the Respondent and, if so, whether the latter had a valid justification
for not having complied with its financial obligations.
32. The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded
between the parties. In this regard, the Single Judge noted that the Respondent confirmed
it had not made the payment although it adduced to have valid justifications for such nonpayment.
33. The Single Judge noted that the amounts claimed consisted of two different concepts.
Regarding the appearance bonus of EUR 50,000, the Single Judge observed that the
Claimant had provided evidence of having played more than 22 games for the
Respondent during the season 2020/2021.
34. Moreover, the Single Judge deemed that the argument put forward by the Respondent
regarding the meaning of “cumulative bonus” had to be rejected.
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35. In support of this position, the Single Judge referred to the literal wording of the clause
which states that: “the PLAYER will be entitled to the following net and cumulative additional
remunerations (…)”. The Single Judge confirmed that each bonus amount agreed between
the parties in the said clause is independent and may be “accumulated”. That is that the
Claimant may receive more than one of the amounts agreed therein.
36. Consecutively, the Single Judge turned to the claim for outstanding salaries and noted
that parties differ on the last day the Claimant was employed by the Respondent, and
therefore, the last day the Claimant is entitled to be remunerated for.
37. At this point, the Single Judge reiterated the contents of art. 13 par. 4 of the Procedural
Rules and observed that based on the information available on TMS, the loan agreement
with Alanyaspor and the player’s employment contract with Alanyaspor started on 8
September 2021.
38. Based on the foregoing, the Single Judge confirmed that the Claimant is entitled to the
salary for the days between 21 August 2021 and 7 September 2021 (i.e. 18 days), that is
EUR 36,000 (monthly salary 60,000 / 30 days * 18 days).
39. Based on the aforementioned considerations, the Single Judge underscored that no
reasonable justification was presented by the Respondent for not having complied with
the terms of the First Contract and the Second Contract.
40. 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 the parties
in good faith, the Respondent is held liable to pay the Claimant the outstanding amounts
deriving from the two contracts concluded between the parties, namely EUR 50,000 as
outstanding appearance bonus and EUR 36,000 as overdue salary.
41. In addition, taking into consideration the Claimant’s request 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 5% p.a. on the outstanding amounts as from the respective due
dates until the date of effective payment.
ii. Consequences under art. 12bis
42. In continuation, the Single 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.
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43. To this end, the Single Judge confirmed that the player put the club in default of payment
of the amounts sought, which had fallen due more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
44. Accordingly, the Single Judge confirmed that the club had delayed a due payment without
a prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
45. The Single 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 this is the 9th offense by the club within the last two years, the Single Judge
decided to impose a fine on the club, in the amount of USD 40,000 in accordance with art.
12bis par. 4 lit. c) of the Regulations.
46. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
47. Finally, taking into account the applicable Regulations, the Single Judge referred to art. 24
par. 1 and 2 of the Regulations, which stipulate that, with their 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.
48. In this regard, the Single 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. The
overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
49. 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. 24 par. 2, 4, and 7 of the Regulations.
50. 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.
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51. 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.
24 par. 8 of the Regulations.
d. Costs
52. 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, the Single Judge decided that no procedural costs
were to be imposed on the parties.
53. 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.
54. 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 Dispute Resolution Chamber
1.
The claim of the Claimant, Chidozie Collins Awaziem, is accepted.
2.
The Respondent, Boavista FC, has to pay to the Claimant, the following amount(s):
- EUR 86,000 as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 50,000 from 1 January 2021 until the date of effective payment;
On EUR 20,000 from 5 August 2021 until the date of effective payment;
On EUR 16,000 from 5 September 2021 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Respondent is ordered to pay a fine in the amount of USD 40,000. 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 nr. FPSD-6646:
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
5.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
6.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players, 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.
7.
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.
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8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
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