Dispute Resolution Chamber
Texto da decisão
REF FPSD-2234
Decision of the
Dispute Resolution Chamber
passed on 2 June 2021
regarding an employment-related dispute concerning the player Grigorii Grishin
BY:
Philippe Diallo (France), DRC Judge
CLAIMANT:
Grigorii Grishin, Russia
Represented by SILA International Lawyers
RESPONDENT:
Jomo Cosmos FC, South Africa
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REF FPSD-2234
I.
Facts
1.
On 1 August 2018, the parties concluded a contract valid until 30 June 2019 (the first
contract).
2.
Following the Schedule to the contract (the first contract), the player was entitled to ZAR
15,000 gross.
3.
Art. 6.5 of the contract stipulated the following:
It is the [Player's] responsibility to ensure that appropriate disability or other insurance
cover is in place should the [Player] require such cover in addition to any cover arranged
by the NSL or SAFA. It will be the [Player's] responsibility to ensure that, in the event of
a claim or potential claim, the claim is submitted timeously and prosecuted to finality.
4.
On 1 July 2019, the parties concluded a second contract, valid until 30 June 2020.
5.
Following the second contract, the player was entitled to ZAR 15,000 per month.
6.
On 9 July 2019, the Club and “Western National Insurance Company” concluded an
Agreement of loss for sport claims with the insurance company with the following contents:
“I/We the undersigned, Joma Cosmos Football Club hereby agree to accept the sum of R151
826.74 (Medical expenses and Salary compensation), being the full and final settlement of
all claims which I/we have against the Insurer under claim number WESTNAT-0004258 and
arising out of injury, which occurred on or about 23 September 2018 and all other matters
relating from such events (past/ present/ future).”
7. Art. 23.1 of the NSL Handbook stipulated the following:
23.1. The League will, at its cost, insure registered Players and those Member Club Officials
who either have registration cards or who are listed on the Member Club's initial or annual
renewal of membership form.
8.
According to the player, on 23 September 2018, he suffered an injury and underwent a
surgery and treatment.
9.
On 18 June 2020, the legal representative of the player sent a default notice requesting the
payment of ZAR 75 000 owed in terms of unpaid salary funds, and ZAR 151 826.74 owed in
respect of the medical insurance claim paid by the relevant insurer to the Club on 13 August
2019.
10.
On 20 July 2020, the legal representative of the player sent a default notice requesting the
payment of the outstanding amount of ZAR “242,9191.54” by no later than 7 days.
11.
On 5 April 2021, the player lodged a claim for outstanding remuneration and requested the
payment of the following amounts:
- 90 000 net, as outstanding remuneration, plus 5% interest p.a., corresponding to the
following amounts:
- ZAR 5,000 for November 2018;
- ZAR 5,000 for December 2018;
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REF FPSD-2234
-
- ZAR 15,000 for June 2019;
- ZAR 15,000 for February 2020;
- ZAR 5,000 for March 2020;
- ZAR 15,000 for April 2020;
- ZAR 15,000 for May 2020;
- ZAR 15,000 for June 2020.
98 064.61 net, as outstanding remuneration, plus 5% interest p.a., as reimbursement for
medical expenses.
12.
In this respect, the player argued that, according to medical documentation and payment
slips, the Player paid in total South African rand (R)as follows:
R56,492.16 + R21,400 + R7,700 + R2,120 + R1,250 + R850 + R800 + R468.90 + R6,983.55
= R 98,064.61
13.
The player stated that “in the absence of a specific clause in the relevant employment
contract, the monies are payable net.”
14.
In support of its requests for medical expenses, the player provided the following evidence:
- “Pre-payment estimate”, dated 4 October 2018, from “Life healthcare”, in the amount
of ZAR 56,492.16;
- “Estimate” from “Dr Eugene Pelser”, in the amount of ZAR 21 350.06 (4.10.2018);
- ZAR 7,700 “Kwotasie / Quotation” from Dr. E. Pelser, dated 4 October 2018;
- «Quotation» for ZAR 2,123.70 from «Medical Billing Solutions” (treatment at nursing
home, etc.)
- ZAR 850, dated 9/10/2018
- ZAR 800 on 8 October to Dr. Eudore Maré, Orthopaedic Surgeon;
- ZAR 468.90 to “Capital Radiology”; dated 2 October 2018;
- ZAR 7 759.50 on 2 October 2018
15.
The player further provided a statement from Dr. Eugene Pelser, confirming that he treated
the player for 6 months.
16.
The player underlined that the medical expenses coverage under the Agreement, provided
by the Insurance Company to the Club, is a limited amount, which follows directly from the
text. However, according to the player, “considering Art. 12bis of FIFA RSTP and principle
pacta sunt servanda, (…) medical expenses shall be covered by the Club in full, including a
partial coverage of such expenses provided to the Club by the Insurance Company.”
17.
Despite being invited to do so, the Respondent failed to reply to the claim.
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REF FPSD-2234
II. Considerations of the Dispute Resolution Chamber
1. First
of
all,
the
DRC
Judge
(hereinafter
also
referred
to
as Chamber or DRC) analysed whether it was competent to deal with the case at hand.
Taking into account the wording of art. 21 of the January 2021 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the
Procedural Rules is applicable to the matter at hand.
2. Subsequently, the DRC Judge referred to art. 3 par. 1 of the Procedural Rules
and emphasised that, in accordance with art. 24 par. 1 in combination with art.
22 lit. b) of the Regulations on the Status and Transfer of Players, the DRC Judge is
competent to deal with matters which concern employment-related disputes with an
international dimension between players and clubs.
3. However, on this note, the DRC Judge referred to art. 25 par. 5 of the Regulations,
according to which “the relevant FIFA decision-making body shall not hear any case
subject to these regulations if more than two years have elapsed since the event giving
rise to the dispute. Application of this time limit shall be examined ex officio in each
individual case”.
4. Hence, in the matter at stake, which concerns the payment of outstanding salaries, the
DRC Judge noted that the player lodged his claim on 5 April 2021. As a result, and in line
with art. 25 par. 5 of the Regulations, the DRC Judge determined that no salaries or
reimbursement that were due prior to 5 April 2019 can be awarded, i.e. two years prior
to the claim.
5. In continuation, the DRC Judge analysed which edition of the Regulations of the Status
and Transfer of Players should be applicable to the present matter. In this respect, the
DRC Judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on
the Status and Transfer of Players, and considering the date when the claim was lodged,
the February 2021 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand.
6. With the above having been established, the DRC Judge entered into the substance of
the matter. In doing so, it started to acknowledge the facts of the case as well as the
documents contained in the file. However, the DRC Judge emphasized that in the
following considerations it will refer only to facts, arguments and documentary evidence
which it considered pertinent for the assessment of the matter at hand.
7. In this respect, the DRC Judge noted that, on 1 August 2018, the parties concluded a
contract valid until 30 June 2019 (the first contract), as well as into a subsequent second
contract that was signed on 1 July 2019 with a period of validity until 30 June 2020, for a
monthly salary in both cases of ZAR 15,000.
8. Thereafter, the DRC Judge noted that the the player lodged a claim for outstanding
remuneration and requested the payment of the amounts that are quoted in point I. 11
above.
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REF FPSD-2234
9. On the other hand, the DRC Judge noted that the Respondent failed to present its
response to the claim of the Claimant, in spite of having been invited to do so. By not
presenting its position to the claim, the DRC Judge was of the opinion that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
10. Furthermore, as a consequence of the aforementioned consideration, the DRC Judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a
decision upon the basis of the documentation already on file; in other words, upon the
statements and documents presented by the Claimant.
11. In view of the above, the DRC Judge determined that the following amounts remain
outstanding:
- ZAR 15,000 for June 2019;
- ZAR 15,000 for February 2020;
- ZAR 5,000 for March 2020;
- ZAR 15,000 for April 2020;
- ZAR 15,000 for May 2020;
- ZAR 15,000 for June 2020.
12. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge
established that the Respondent has to pay to the Claimant, the total outstanding
amount of ZAR 80,000, as detailed in the previous paragraph.
13. Moreover, taking into account the request of the Claimant as well as the longstanding
jurisprudence in this regard, the DRC Judge decided to award 5% interest p.a. over said
amount as from the due date.
14. Furthermore, taking into account the previous considerations, the DRC Judge referred to
par. 1 and 2 of art. 24bis 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.
15. In this regard, the DRC Judge pointed out 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
and for the maximum duration of three entire and consecutive registration periods.
16. Therefore, bearing in mind the above, the DRC Judge decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from the
moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering any
new players, either nationally or internationally, for the maximum duration of three
entire and consecutive registration periods shall become effective on the Respondent in
accordance with art. 24bis par. 2 and 4 of the Regulations.
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REF FPSD-2234
17. Finally, the DRC 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. 24bis par. 3 of the Regulations.
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Grigorii Grishin, is partially accepted insofar it is admissible.
2.
The Respondent, Jomo Cosmos FC, has to pay to the Claimant, the amount of ZAR 80,000
as outstanding remuneration, plus interest as follows:
- 5% interest p.a. over the amount of ZAR 15,000 as from 1 July 2019 (salary of June 2019) until the date of effective payment;
- 5% interest p.a. over the amount of ZAR 15,000 as from 1 March 2020 (salary of February 2020) until the date of effective payment;
- 5% interest p.a. over the amount of ZAR 5,000 as from 1 April 2020 (salary of March 2020) until the date of effective payment;
- 5% interest p.a. over the amount of ZAR 15,000 as from 1 May 2020 (salary of April 2020) until the date of effective payment;
- 5% interest p.a. over the amount of ZAR 15,000 as from 1 June 2020 (salary of May 2020) until the date of effective payment;
- 5% interest p.a. over the amount of ZAR 15,000 as from 1 July 2020 (salary of June 2020) until the date of effective payment;
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid 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 paid by the end of the of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24bis of the Regulations on the Status and Transfer of Players.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF FPSD-2234
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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