DRC Overdue Payables
Texto da decisão
REF FPSD-8800
Decision of the
Dispute Resolution Chamber
passed on 14 February 2023
regarding an employment-related dispute concerning the player Ededem
Edem Essien
BY:
Iñigo Riestra, Mexico
CLAIMANT:
Ededem Edem Essien, Nigeria
Represented by Unoleda LP
RESPONDENT:
Al Nasr, Libya
Represented by Sport 7
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REF FPSD-8800
I. Facts of the case
1.
On 14 February 2022, the Nigerian player, Ededem Edem Essien (hereinafter: the player
or the Claimant), and the Libyan club, Al Nasr (hereinafter: the club or the Respondent)
concluded an employment contract valid as from 15 February until 15 August 2022
(hereinafter: the employment contract).
2.
Under the employment contract, the club undertook to pay to the Claimant the total
remuneration of USD 45,000, broken down as follows:
a. USD 10,000 “when passing the medical examination and then arrival of his
international card from the International Federation”;
b. USD 11,000 within two months of the first payment; and
c. USD 24,000 in 4 monthly instalments of USD 6,000 each.
3.
On 5 December 2022, the player put the club in default and requested payment of USD
15,000 within the following 10 days.
II. Proceedings before FIFA
4.
On 4 January 2023, the player lodged a claim before FIFA for overdue payables amounting
to USD 15,000 “plus 5% interest per annum from the 15th of August 2022 till full and final
payment is made by the Respondent”.
5.
On 6 January 2023, the player was requested by the FIFA general secretariat to provide
the breakdown of the amount in dispute.
6.
On the same date, the player explained that the balance of USD 15,000 corresponded to
the monthly instalments due in June 2022, July 2022, and August 2022 (pro rata).
7.
Therefore, he requested to be awarded the following amounts:
a. USD 6,000 plus 5% interest p.a. as from 30 June 2022;
b. USD 6,000 plus 5% interest p.a. as from 31 July 2022; and
c. USD 3,000 plus 5% interest p.a. as from 15 August 2022.
8.
On 7 February 2023, the club filed its reply to the claim of the player. In doing so, it
acknowledged its debt towards the player, however argued that the amount sought (USD
15,000) should have a deduction of 3% in line with art. 20, par. 2, lit. N) of the Libyan
Football Federation (LFF) Regulations (hereinafter: the LFF Regulations).
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9.
According to the translation provided by the club, the abovementioned provision reads
as follows:
“Request for professional player registration (local – foreign)
First: Professional player registration request
1. When submitting an application to register a professional player, the club must submit
copies of the contract concluded between the club and the player, valid during the approved
registration periods.
2. The Committee has the right and authority to accept or approve the application and its
attachments such as additional contracts and agreements. In all cases, the Committee does
not issue its approval of players’ registration requests except after completing the following
forms and documents:
[...]
N. financial receipt from the financial department of the federation to pay (3%) three per cent
of the total value of the player’s contract”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. First of all, the Single Judge of 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 4 January
2023 and submitted for decision on 14 February 2023. Taking into account the wording
of art. 34 of the October 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.
11. 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 par. 1 lit. b) of
the Regulations on the Status and Transfer of Players (October 2022 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 Nigerian player
and a Libyan club.
12. 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.
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1 and 2 of the Regulations on the Status and Transfer of Players (October 2022 edition),
and considering that the present claim was lodged on 4 January 2023, the cited edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
13. 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
14. The 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 he will refer only to the facts, arguments and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
15. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains to a claim for overdue payables in
connection with the employment contract signed by and between the parties on 14
February 2022.
16. In particular, he took due consideration that it remained undisputed between the parties
that USD 15,000 out of the USD 45,000 owed by the club to the player are outstanding.
On the other hand, the Single Judge was also observant that the club argued that such
amount should have a 3% reduction in line with the LFF Regulations.
17. In this context, the Single Judge turned his attention to the abovementioned LFF
Regulations. In doing so, he considered that it was clear from such diploma that the
payment invoked by the club should be made by itself upon registration of any player, as
well as there is no apparent contractual, legal, and/or regulatory basis to transfer him this
liability. Consequently, the Single Judge was firm to determine that the position of the club
regarding the alleged deduction such be rejected.
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18. It followed, in the Single Judge’s view, that the player should be entitled to the
remuneration provided for in the employment contract in full (i.e., USD 15,000) in line with
the general legal principle of pacta sunt servanda.
19. Lastly, the Single Judge noted that the due date of each of the instalments was not
properly specified in the employment contract. However, he stressed that the allocation
of the amounts by the player appeared to be reasonable (i.e., the last months of the
employment contract) and was not challenged by the club. As such, the Single Judge
decided that the amounts should be awarded as claimed, together with interest at the
rate of 5% p.a. as from the day following each of the due dates until the date of effective
payment.
ii. Article 12bis of the Regulations
20. Having established the above, 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.
21. 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 for more than 30 days, and granted the club
with 10 days to cure such breach of contract.
22. Accordingly, the Single Judge also 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 were met in the case at hand.
23. 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 and
bearing in mind that this is the first offense by the club within the last two years, the Single
Judge decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a)
of the Regulations.
24. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
25. 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 its decision, the pertinent FIFA
deciding body shall also rule on the consequences deriving from the failure of the
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concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
26. 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.
27. 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
28. 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.
29. 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
30. 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.
31. 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.
32. 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, Ededem Edem Essie, is partially accepted.
2.
The Respondent, Al Nasr, has to pay to the Claimant the following amounts:
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2022 until the
date of effective payment;
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2022 until
the date of effective payment; and
- USD 3,000 as outstanding remuneration plus 5% interest p.a. as from 16 August 2022 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, 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.
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-8800
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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