DRC Overdue Payables
Texto da decisão
REF. FPSD-14243
Decision of the
Dispute Resolution Chamber
passed on 16 May 2024
regarding an employment-related dispute concerning the player Wescley
Gomes dos Santos
BY:
Michele Colucci, Italy
CLAIMANT:
Wescley Gomes dos Santos, Brazil
Represented by Wallace Joacir Alves de Oliveira
RESPONDENT:
Gol-e Gohar FC, IR Iran
pg. 2
REF. FPSD-14243
I. Facts of the case
1.
The parties to this dispute are the Brazilian player Wescley Gomes dos Santos (hereinafter:
the Player or the Claimant) and the Iranian club Gol-e Gohar FC (hereinafter: the Club or the
Respondent).
2.
The Player and the Club are hereinafter jointly referred to as the Parties.
3.
On 21 July 2022, the Club issued an employment offer (hereinafter: the Offer) to the Player
with inter alia the following conditions:
•
•
•
Term: one fixed year and one conditional year;
Price: total of USD 420,000 net;
Additional bonuses for performance of sporting goals.
4.
On 22 July 2022, the Parties signed an employment contract valid for one year, starting
from the date of signature (hereinafter: the Employment Contract).
5.
Articles 3, 4 and 5 of the Employment Contract read inter alia as follows (quoted verbatim):
“Article 3- Duration of the Contract
The duration of the contract will be one year fixed and one other year conditional.
From July 22,2022,and
If You play 60 percent of the official matches in the season 2022-2023 your contract for
the second season (2023-2024) will be activated, which is valid and effective from the
beginning to the end an its extension is subject to the agreement of the parties and is
unrestricted.
Note 1: Obviously, if the Club’s presence in the Elimination Matches, Asian Cup and other
matches in which it participates continues after the end of the league season, the Player
is obliged to attend until the end of the said matches and this period is part of the
continuation of the season and the contract period.
Note 2: Relegation to a lower category or changing the city where the hosting tournament
is held will not affect the validity of this Contract and the fulfillment of the obligations of
the parties under this Contract will be mandatory.
Article 4- The Amount of the Contract
The price of the contract for the first season will be $420,000 net which 35 percent of it
will be paid after receiving ITC and 65 percent of it will be paid as monthly salary.
Club will provide accommodation, round tickets, (sao paulo -Tehran) for player, and his
family.
If you score 10 goals or more: $25.000.
$40.000 for winning the league,
$20.000 for knock- out Cup, will be negotiated within a meeting with your presence, and
will be written later on before signing.
pg. 3
REF. FPSD-14243
The player is required to (do his part to make sure) his contract against accidents and
injuries in order to enjoy its benefits in case of injury and absence.
Regarding the unmentioned conditions in this contract, first ‘according to the disciplinary
regulations of the club and secondly, according to the transfer regulations of the football
federation.’ Will be implemented. If You play 60 percent of the official matches in the
season 2022-2023 your contract for the second season will be activated for $460.000 net.
The Club will not have any liability for the excess of the Player's definite claims vis-a-vis
other persons who are seeking to detain Player's assets.
The club shall provide round-trip air tickets to the player (Brasil-lran).
Article 5 - Financial Obligations
1. The parties agreed that there may be an interruption in the payments by the club for
up to two months due to financial issues, and therefore the Player is deprived of the right
not to participate in training and competitions and is committed to continue working
with the Club.
2. If the Player does not participate in the training under the pretext of delay in
payments, the Club can deduct up to 3% of the Contract amount for each training session
and up to 5% of the Contract amount for each match as a fine.
3. The payment of any tax according to the directives issued by the Federation is the
responsibility of the Player and he is obliged to personally refer to the legal authority of
economic affairs and assets to complete the form of taxpayers and pay it and obtain a
tax account immediately. If a part of the Player's tax is paid by the Club, it will be
deducted from his claims.
4. The Player will be responsible for paying possible disciplinary offenses of the Club's
Disciplinary Committee and the judicial bodies of the Federation, as well as paying the
registration fee for the Provincial Board, the Football Federation and the League
Organization, which will be deducted from his claims if paid by the Club”.
6.
Articles 11 and 12 of the Employment Contract read inter alia as follows:
“Article 11 - Other Conditions during the Contract
[...]
The club will prepare round trip tickets lor the player and one round trip ticket for his
family”.
7.
On an unspecified date, the Player signed the following statements, all drafted in a
document with the Club’s letterhead (quoted verbatim):
“I Wescly Gomes Dos Santos, from Brazil, passport number TO 803616, confirm that
based on the decision of board of directors of the club (# 1402-05,18.05.2023), regarding
the awful result of the team in the last seven matches) losing five & drawing Two matches
and taking only two points out of twenty one possible points: ~5% of the price of all player
and technical staff is deducted as the punishment for bad result) the club deduct -5% of
the fix price of my contract ($21.000) for the football season 2022-2023. Since the club
pg. 4
REF. FPSD-14243
pay me and other players good bonus beside the contract for good result for each match
during the season, I accept this decision and I don’t have any claim toward this decision.
My Friends & teammates (Kiros Stanely Soarez Fcrraz, from Brazil, passport number
VC747685 & Baboue Eric Bagnama Bocoum, from Gabon, passport number 20 GA 12792,
are my witness that I confirm this decision”.
[...]
“I Wescly Gomes Dos Santos, from Brazil, passport number FO 803616, confirm that
based on the decision of board of directors of the club (# 1402-05,18.05.2023) regarding
the awful result of the team in the last seven matches (losing five A drawing Two matches
and taking only two points out of twenty one possible points: -5% of the price of all player
and technical staff is deducted as the punishment for bad result) the club deduct -5% of
the fix price of my contract ($21.000) for the football season 2022-2023. Since the club
pay me and other players good bonus beside the contract for good result for each match
during the season, I accept this decision and I don't have any claim toward this decision.
My Friends & teammates (Kiros Stanely Soarez Ferraz, from Brazil, passport number
YC747685 & Baboue Eric Bagnama Bocoum, from Gabon, passport number 20 G A
12792, are my witness that I confirm this decision. Before this punishment, on 09.05.2023
the disciplinary committee and management of the club penalize me 6% of the fix price
of my contract (based on article 5, financial & obligation of the contract) and presented
to me, but the club totally fined me only ~5% of the fix price of my contract”.
[...]
“I Wescly Gomes Dos Santos,from Brazil, passport number FO 803616, received $398,600
(Three hundred ninty eight thousand and six thousand Dollars) in cash, (in different
parts) during the season 2022-2023, from [the Club], as the total amount of my contract
with [the Club] (2022-2023). I confirm that I received all these amount in cash and the
club does not have any obligation toward me for the football season 2022-2023. My
Friends & teammates (Kiros Stanely Soarcz Ferraz, from Brazil, passport number
YC747685 & Babouc Eric Bagnama Bocoum, from Gabon, passport number 20 G A
12792, are my witness that I received this amount and the club pay me off completely for
this season”.
8.
The Employment Contract naturally expired on 30 June 2022.
9.
On 18 March 2024, the Player put the Club in default and requested payment of USD
21,000, corresponding to 5% of his remuneration under the Employment Contract, within
the following 10 days.
pg. 5
REF. FPSD-14243
II. Proceedings before FIFA
10. On 28 March 2024, the Player filed the claim at hand before FIFA. The following is a brief
summary of the parties’ respective positions.
a. Position of the Player
11. In his claim, the Player alleged that “’based on awful result of the team in the last seven
matches (losing five & drawing two matches and taking only two points out of twenty-one
possible points’, disciplinary proceedings were initiated by the club and a monetary disciplinary
sanction in the amount of 5% of the entire salary provided in the employment contract for the
2023-2024 football was imposed”, therefore amounting to USD 21,000.
12. The Player challenged that reasonableness and proportionality of the fine, as well as the
respect to his procedural rights. His conclusion was that the deduction was unlawfully
applied over his salary of May 2023.
13. In addition, the Player argued that the Club has also failed to provide him with the return
flights tickets to his family, which were bought as his own expenses. He filed copies of two
round-trip tickets, as follows:
•
From São Paulo (Brazil) to Dubai (UEA) on 17 March 2023 and vice-versa on 25
March 2023, in the name of Ana Beatriz de Azevedo Gomes – Total cost: BRL
5,098.25; and
•
From São Paulo (Brazil) to Dubai (UEA) on 17 March 2023 and vice-versa on 25
March 2023, in the name of Isis Antonia Azevedo Gomes – Total cost: BRL
3,824.99.
14. In light of the above, the Player requested to be awarded the following amounts:
•
USD 21,000 as outstanding remuneration corresponding to 5% of his
remuneration under the Employment Contract, deducted from his salary of May
2023;
•
BRL 12,978.64 as reimbursement of the flight tickets “to bring his family to Tehran”;
•
5% interest p.a. over the abovementioned amounts as from the respective
due dates.
b. Position of the Club
15. On 22 April 2024, the Club filed its reply to the claim.
pg. 6
REF. FPSD-14243
16. In its reply, the Club alleged having paid all his dues towards the Player. In particular, the
Club confirmed having deducted 5% of his remuneration due to a disciplinary decision, and
stated as follows (quoted verbatim):
“Respond: One week before ending the football season 2022-2023 both parties, club and
the player, absolutely agreed about everything, the penalties (6 percent of the contract
by disciplinary committee of the club and 5 percent of the contract by board of directors),
Taxes and registration costs, payments, bonuses, trips, apartments, transport vehicles,
clothes and equipment and all other things -Since there was no penalty and no bonus
mentioned in the contract and player received very good bonus (in cash) during the
season (minimum $1500 and maximum $2500 for each win) he finally accepted only 5%
of the punishment by the board of directors and did not accept the other penalty (6% of
penalty by disciplinary committee) and signed the letter of acceptance ,even two of his
friend and teammates ,Mr Kirosh Stanely from Brazil and Baboue Eric Bagnama Bocoum
from Gabon signed the paper as witnesses. (Exhibit n.05) Since then (May 2023) and after
the player left Iran, there was no communication at all between the player or his agents
or any lawyers or any other person from player side with the club or any requests from
them until March 18 for the first and last time but the player claim despite numerous
requests, payment regarding 5% of the entire salary provided in the employment contract
for the 2023-2024 football has still not been received”.
17. Furthermore, the Club highlighted that the Player only challenged the abovementioned
deduction in May 2024 (i.e., after ten months), therefore in a belated fashion.
18. As to the flight tickets, the Club argued that the Player was only entitled to one round-trip
ticket for himself, and another one for his family. However, it explained that “the player
never ever presented any necessary documents of his family to issue the visa for them to come
to Iran, (passport and photo) and the player never ever requested for preparing tickets and
bringing his family to Iran”. As such, it asserted that the Player’s request for reimbursement
is “nonsense”.
19. Lastly, the Club requested that the claim of the Player be entirely rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter: the 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 25 March 2024 and submitted for
decision on 16 May 2024. Taking into account the wording of art. 34 of the March 2023
edition of the Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural
pg. 7
REF. FPSD-14243
Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at
hand.
21. Furthermore, 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 (February 2024 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 an Iranian club.
22. 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 (February 2024 edition)
and considering that the present claim was lodged on 25 March 2024, the cited edition of
said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
23. 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
24. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
i. Main legal discussion and considerations
25. The Single Judge moved to the substance of the matter and took note of the fact that it
pertains to a claim for outstanding remuneration lodged by the Player against the Club in
connection with the Employment Contract.
26. In this context, the Single Judge noted that the Player claims to be entitled to (i) the balance
of USD 21,000 allegedly deducted from his remuneration due to a disciplinary decision
pg. 8
REF. FPSD-14243
rendered by the Club; and (ii) the reimbursement of BRL 12,978.64 concerning flight tickets
allegedly issued to his family. On the other hand, the Club disputes his entitlement to both
concepts.
27. The Single Judge moved then to analyse each issue in turn.
A. Balance of the remuneration (5%)
28. First and foremost, the Single Judge acknowledged that it remained undisputed between
the Parties that 5% of the Player’s remuneration under the Employment Contract was
deducted due to the alleged poor performance of the team in the national competition. It
was equally not disputed that the Club communicated said deduction to the Player via
disciplinary proceedings – a copy of which, however, was not made available on file in these
proceedings before the Football Tribunal.
29. In view of the above, the Single Judge recalled that in line with the well-established
jurisprudence of the Football Tribunal and the Court of Arbitration for Sport (CAS), a club
intending to impose disciplinary sanctions against a player is required to act in a diligent
and transparent way to guarantee that the employee’s right to be heard are duly fulfilled,
hence that it is legally / contractually authorized to deduct or withdraw from paying a
contractually agreed remuneration (see, in this respect, Commentary on the Regulations
on the Status and Transfer of Players – p. 141).
30. While considering the above, the Single Judge deemed that the Club could neither establish
that it had a valid reason to impose a “fine” on the Player, nor that his procedural rights
were duly respected. In particular, the Single Judge highlighted the following:
•
the solid jurisprudence of the Football Tribunal establishes that the poor
performance of a player cannot justify the non-payment of their remuneration in
that is constitutes a unilateral and subjective criteria;
•
the Club did not advance any evidence of a personal wrongdoing committed by
the Player, let alone of a breach of contract severe enough to justify the
immediate deduction of part of his remuneration instead of more lenient
measures (e.g., warning, reprimand, suspension);
•
the disciplinary proceedings supposedly conducted against the Player were also
undocumented. In fact, the Single Judge found no evidence that the Player was
ever summoned and/or invited to submit his defence. Likewise, the Club failed to
submit a copy of the decision and limited itself to provide some unclear
declarations signed by the Player– which, in the Single Judge’s view, have limited
evidentiary weight;
•
the proportionality of the fine is also questionable insofar as it amounts to nearly
pg. 9
REF. FPSD-14243
an entire monthly salary of the Player.
31. Based on all the above, the Single Judge was of the opinion that the deduction made by the
Club over the Player’s remuneration could not be upheld, hence that he should be entitled
to the outstanding remuneration sought based on the general principle of pacta sunt
servanda (i.e., USD 21,000). This conclusion, in the Single Judge’s view, was also irrespective
of (i) any additional bonus paid to the Player upon discretion of the Club; and (ii) the time
lapse between the declarations and the Player’s claim – especially because the
documentation is undated and the Employment Contract was ongoing at the time, with the
possibility of being extended to another season.
32. In addition, taking into consideration the Player’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Player interest
at the rate of 5% p.a. on the outstanding amount as from 1 June 2023 until the date of
effective payment.
B. Reimbursement of the flight tickets
33. In continuation, the Single Judge turned his attention to the Player’s request for
reimbursement of flight tickets allegedly issued for his family.
34. As a departure point, the Single Judge recalled that the Employment Contract reads as
follows concerning flight tickets: “The club will prepare round trip tickets for the player and
one round trip ticket for his family”.
35. Consequently, the Single Judge acknowledged that the Player would in principle be entitled
to the reimbursement of “one roundtrip ticket for his family”, as long as supported by the
necessary documentation. Nevertheless, upon analysis of the evidence submitted by the
Player, the Single Judge gave due consideration to the following:
•
there is no clear specification as to the identity of the passengers nor of their link
to the Player, which cannot be concluded on the sole basis of their names;
•
there is no proof that the tickets were paid by the Player;
•
despite the Player mentioning in his claim that the tickets were used “to bring his
family to Iran”, no explanation was provided as to the dates and destination (i.e.,
Dubai instead of Tehran);
•
there is no document on file suggesting that the Player has ever liaised with the
Club about the issuance of the tickets to his family. The reimbursement now
claimed was also not mentioned in the Player’s default notice of March 2024.
pg. 10
REF. FPSD-14243
36. Against this background, the Single Judge concluded that the Player could not meet his
burden of proof to demonstrate his entitlement to the concepts sought. Thus, the Single
Judge rejected this part of the claim.
ii. Article 12bis of the Regulations
37. 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.
38. 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.
39. 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.
40. 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.
41. 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
42. 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
concerned party to pay the relevant amounts of outstanding remuneration and/or
compensation in due time.
43. 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.
pg. 11
REF. FPSD-14243
44. 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 Respondent in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
45. 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.
46. 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
47. 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.
48. 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.
49. Lastly, the Single Judge concluded the deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 12
REF. FPSD-14243
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Wescley Gomes dos Santos, is partially accepted.
2.
The Respondent, Gol-e Gohar FC, must pay to the Claimant USD 21,000 as outstanding
remuneration plus 5% interest p.a. as from 1 June 2023 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
pg. 13
REF. FPSD-14243
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 Governing the Football
Tribunal).
CONTACT INFORMATION
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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 14