DRC Overdue Payables
Texto da decisão
REF FPSD-4523
Decision of the
Dispute Resolution Chamber
passed on 09 February 2022
regarding an employment-related dispute concerning the player Gian dos
Santos Martins
BY:
Alexandra Gómez Bruinewoud (Uruguay & the Netherlands)
CLAIMANT:
Gian dos Santos Martins, Brazil
Represented by Association of Professional Footballers of the Kyrgyz Republic
RESPONDENT:
FC Okzhetpes, Kazakhstan
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REF FPSD-4523
I.
Facts of the case
1.
On 20 January 2020, the Brazilian player, Mr Gian dos Santos Martins (hereinafter: the player
or the Claimant) and the Kazakhstani club, FC Okzhetpes (hereinafter: the club or the
Respondent) concluded an employment contract valid as the date of signature until 9
November 2020 (hereinafter: the employment contract).
2.
In accordance with clause 3 of the employment contract, the club undertook to pay the player
a monthly salary of KZT 4,334,000.
3.
Additionally, clause 5.2 of the employment contract read as follows:
“[The club] provides [the player] with the main paid annual work leave of 28 calendar days
(commitment to the minimum requirements of a standard player contract in the professional
football sector in the EU and in the rest of UEFA). By agreement between the Parties, paid
annual leave may be divided into parts. In this case, one of the parts of the paid labor leave
must be at least two calendar weeks of the duration of the leave provided for in this
paragraph”.
4.
On 18 January 2020, the player travelled from São Paulo, Brasil to Istanbul, Turkey with a
stopover in London, Great Britain. The ticket costed EUR 847,50 (RUR 58,154) and was paid
by the player.
5.
On 25 February 2021, the player put the club in default and requested payment of (i) KZT
13,616,400 as outstanding salaries for March, April, October and November 2020; and (ii)
KZT 3864,600.90 as compensation for the unused annual labor leave. He granted the club
with 14 days’ deadline in order to remedy the breach.
6.
On 26 February 2021, the club issued a letter signed by its Director by means of which it
acknowledged receipt of the player’s correspondence and stated that it would pay its debt
“after conducting an audit appointed by [its] founder and additional funding until mid-April
2021”.
7.
Subsequently, the player replied to the club and stressed that he would “expect to receive
the entire amount owed no later than within the time frame [the club] specified, that is, April
15, 2021”.
8.
On 22 April 2021, the player sent the club another default notice informing that he had not
received any payment within the expected deadline. In doing so, he granted 9 additional days
for the breach to be cured, to no avail.
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REF FPSD-4523
II. Proceedings before FIFA
9.
On 10 December 2021, the player filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the player
10. In his claim, the player clarified that he performed his duties towards the club as from the
date of signature of the employment contract until 25 November 2021 however that a
significant part of his remuneration remained outstanding.
11. Consequently, the payer referred to art. 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and claimed that the club should be liable to pay him the following
amounts:
a. KZT 13,616,400 as outstanding salaries, plus interest of 5% p.a. as from 1 April 2020,
broken down as follows:
(i)
(ii)
(iii)
(iv)
KZT 1,083,500 as 25% of the salary of March 2020;
KZT 4,334,000 as the full salary of April 2020;
KZT 4,334,000 as the full salary of October 2020; and
KZT 3,864,900 as the pro rata salary of November 2020 (i.e. 25 days).
b. KZT 3,864,600.90 as compensation for the labour leave, plus 5% p.a. as from 25
November 2020; and
c. EUR 879,12 as reimbursement his flight tickets.
b. Position of the club
12. In its reply, the club challenged the validity of the employment contract and requested the
proceedings to be terminated “on the basis of fake contract”, in the following terms (quoted
verbatim and emphasis as per the original):
“Dear Madam,
[The club] confirm the receipt of your correspondence dated December 13, 2021. We have
carefully studied the materials of the claim and found that they are based on a fake contract
that [the player] attached to his claim.
The document attached by [the player] contains a stamp that is not familiar to us. The stamp
has the form of the club’s logo, but in reality the club uses a different stamp for documents.
This can be easily verified through the FIFA TMS system.
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The signature of Mr. Botimbayev, as an employer, does not correspond to reality. As evidence
we attached the real contract between [the club] and the player Gian dos Santos Martins
from Brazil (Attachment 1). You can easily verified this information through the FIFA TMS
system (domestics transfers). Also this information can be confirm Kazakhstan Football
Federation.
Due to the fact that the claim is based on a fake contract, we are ready to give any comments
on the employment relationship with Gian dos Santos Martins, and to respond to the claims
set out in the lawsuit. We think that this claim was filed by fraudsters in order to receive
money from the club. Other evidence and documents attached to the claim may also be fake.
We ask you to terminate the proceedings on the initiates case on the basis of fake contract”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
13. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred to
as Single Judge) analysed whether she was competent to deal with the case at hand. In this
respect, she took note that the present matter was presented to FIFA on 10 December 2021
and submitted for decision on 18 February 2022. Taking into account the wording of art. 34
of the October 2021 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.
14. 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. b) of the Regulations on
the Status and Transfer of Players (August 2021 edition), the Dispute Resolution Chamber 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 Kazakhstani club.
15. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26 par.
1 and 2 of the Regulations on the Status and Transfer of Players (August 2021 edition), and
considering that the present claim was lodged on 10 December 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
16. 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
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wording of art. 13 par. 4 of the Procedural Rules, pursuant to which she 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
17. Her 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 she will refer only to the facts, arguments and documentary evidence, which
she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
18. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the case at hand pertains to a claim for outstanding
salaries, compensation for unused labour leave and reimbursement of flight tickets lodged by
the player against the club.
19. In this context, the Single Judge acknowledged that the player on his part claimed that a
significant part of his remuneration remained outstanding. On the other hand, the Single
Judge was also observant of the club’s argumentation according to which the player based
his claim on a fake contract entailing that the proceedings at hand should be terminated.
20. In light of the foregoing, the Single Judge first of all highlighted that, as a general rule, FIFA’s
deciding bodies are not competent to decide upon matters of criminal law, such as the one
of alleged falsified signatures of documents, and that such affairs fall into jurisdiction of the
competent national criminal authority.
21. With the above in mind and after a thorough analysis of the evidence provided by the parties,
the Single Judge found it pivotal that:
a. the club confirmed the existence of an employment relationship between the parties;
b. in support of its allegations, the club did only provide an untranslated copy of an
employment contract supposedly signed by the parties, which could not be deemed as
a valid piece of evidence in line with art. 13, par. 1 of the Procedural Rules;
c. the club did not specify any differences between its version of the employment contract
and the one previously submitted by the player;
d. the player sent the club three different correspondences and the club has never
contested the validity of the employment contract and/or the quantum claimed; and
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e. by letter dated 26 February 2021, the club acknowledged a debt against the player and
informed that the payments would be performed within mid-April.
22. Based on the abovementioned considerations, the Sigle Judge was of the opinion that the
club could not establish to a comfortable satisfaction degree that the document submitted
by the player was forged. In other words, the Single Judge decided that the club failed to
meet its burden of proof in line with art. 13, par. 5 of the Procedural Rules. Consequently,
she concluded that the club’s argumentation in this regard should be rejected.
23. It followed from the above, in the Single Judge’s view, that the club should be liable to pay
the player the remuneration agreed upon in his version the employment contract.
24. At this point, the Single Judge observed that the club limited itself to challenge the validity of
the employment contract – without providing any convincing evidence in this regard nor an
alternative plea. Notwithstanding, she further observed that the player’s position regarding
both the outstanding salaries and compensation for unused labour leave is contractually
based, and remained uncontested by the club.
25. Therefore, on the basis of the general legal principle of pacta sunt servanda, the Single Judge
decided that the player should be entitled to the amounts sought (i.e. KZT 13,616,400 as
outstanding salaries and KZT 3,864,600.90 as compensation for the unused annual leave).
26. In addition, taking into consideration the player’s request as well as the constant practice of
the Dispute Resolution Chamber in this regard, the Single Judge decided to award the player
interest at the rate of 5% p.a. on the outstanding amounts as from the date in which each
instalment fell due until the date of effective payment. Specifically regarding the
compensation for the unused annual leave, the Single Judge clarified that the interest should
arise as from 25 November 2021, bearing in mind that there was no specific reference to its
due date in the employment contract.
27. Finally, the Single Judge moved to the analysis of the player’s request for reimbursement of
his flight tickets. In doing so, she stressed that his relief lacks contractual basis and was never
mentioned in the previous correspondences exchanged with the club. As such, the Single
Judge was firm to determine that this specific part of the claim should be rejected.
28. By way of conclusion, the Single Judge therefore confirmed that the player’s claim was
partially accepted.
ii. Art. 12bis of the Regulations
29. 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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30. 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
more than 10 days to cure such breach of contract.
31. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a
prima facie contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
32. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations she
has competence to impose sanctions on the club. On account of the above, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
33. 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
34. Taking into account the applicable Regulations, the Single Judge referred to art. 24 par. 1
and 2 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.
35. In this regard, the DRC 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.
36. Therefore, bearing in mind the above, the Single Judge decided that the club must pay the
full amount due (including all applicable interest) to the player within 45 days of notification
of the decision, failing which, at the request of the player, 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 club in accordance
with art. 24 par. 2, 4, and 7 of the Regulations.
37. The club shall make full payment (including all applicable interest) to the bank account
provided by the player in the Bank Account Registration Form, which is attached to the
present decision.
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38. 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
39. At the end, 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, she decided that no procedural costs were to
be imposed on the parties.
40. 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.
41. Lastly, the Single Judge rejected 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, Gian dos Santos Martins, is partially accepted.
2.
The Respondent, FC Okzhetpes, has to pay to the Claimant, the following amount(s):
- KZT 1,083,500 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until
the date of effective payment;
- KZT 4,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment;
- KZT 4,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 November 2020
until the date of effective payment;
- KZT 3,864,600.90 as outstanding remuneration plus 5% interest p.a. as from 25 November
2020 until the date of effective payment; and
- KZT 3,864,900 as outstanding remuneration plus 5% interest p.a. as from 1 December 2020
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A warning is imposed on the Respondent.
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 (August 2021
edition), 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.
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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.
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).
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