DRC Overdue Payables
Texto da decisão
REF FPSD-4903
Decision of the Single Judge of
the DRC
passed on 6 April 2022
regarding an employment-related dispute concerning the player Ifeanyi
Ifeanyi
BY:
Mr Tomislav Kasalo (Croatia), Single Judge of the DRC
CLAIMANT:
Player Ifeanyi Ifeanyi, Nigeria
Represented by Parmars Law firm
RESPONDENT:
FC Mashal, Uzbekistan
Page 2
REF FPSD-4903
I.
Facts of the case
1.
On 20 January 2020, the Nigerian player, Ifeanyi Ifeanyi (hereinafter: player or Claimant) and
the Uzbek club, FC Mashal (hereinafter: club or Respondent) concluded an employment
contract (hereinafter: contract) valid as from the date of signature until 20 December 2021.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of Uzebkistan Som (UZS) 34,000,000. According to the contract said “monthly salary in
accordance with the tax laws of the Republic of Uzbekistan are taxed in the established
mode”.
3.
Art. 4.1.1. of the contract, in the section of the “employer responsibilities” establishes: “To
pay on time the Employee monthly salary fully, as well as make other payments provided for
in this Agreement, its annexes and internal regulatory documents”.
4.
Furthermore, art. 7.2 of the contract reads as follows: “According to the decision of the
Employer and the procedure for the payment of bonus funds, the Employee may be
additionally rewarded for the success achieved. The procedure for issuing bonus amounts is
determined by the following indicators: listed in the starting line-up up to 100% fielded as
substitution, when the number of played minutes exceeds the number of played minutes of
a replaced player – up to 100%, benched as substitution, when the number of played minutes
are less than the number of minutes played by the replaced player – up to 70%, fielded as a
substitution, when the number of played minutes does not exceed the number of minutes
played by the replaced football player is up to 70%, and if only listed in the match list, up to
50%”.
5.
According to an annex to the contract: “The club pays the air ticket to the Ifeany Ifeany player
3 times a year (LAGOS-TASHKENT-LAGOS, LAGOS-TASHKENT-LAGOS, LAGOS-TASHKENTLAGOS)”.
6.
On 13 December 2021, the Claimant put the Respondent in default and requested payment
of UZS 102,000,000, corresponding to his salaries of September, October and November
2021.
7.
On 29 December 2021, the Claimant acknowledged receipt of a payment from the club in
the amount of UZS 24,007,066 referred to “expenditure of December”.
8.
On 10 January 2022, the Claimant put the Respondent in default and requested payment of
the following monies until 20 January 2022:
UZS 102,000,000, corresponding to his salaries of September, October and November
2021;
USD 7,500 as bonuses.
“The equivalent amount for two plane tickets between Nigeria and Uzbekistan”.
Page 3
REF FPSD-4903
In this letter, the Claimant acknowledged receipt of the payment dated 29 December 2021,
but insisted this was the salary for December 2021.
9.
On 21 January 2022, the Claimant acknowledged receipt of another partial payment in the
amount of UZS 14,520,933 referred to “expenditure of January”.
II. Proceedings before FIFA
10. On 21 January 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
11. The Claimant requested payment of the following monies along with interest of 5% p.a.:
UZS 57,479,067 corresponding to the salaries of September and October (2x UZS
24,000,000 as well as the partial salary in the amount of UZS 9,479,067 for November
2021);
USD 7,500 as outstanding bonuses;
“The equivalent amount for two plane tickets between Nigeria and Uzbekistan”.
12. In his claim, the player held that he remained entitled to the claimed amounts.
13. The first payment received in December 2021 he attributes to his salary of December 2021
(not claimed) and the second payment received in January 2022 he deducted from his
November 2021 salary.
14. Regarding the claimed bonuses, the player argued that the “club’s practice is to pay USD
1,000 per game” and that he therefore is, in accordance with the wording of art. 7.2 of the
contract, entitled to USD 7,500.
15. In this regard, he submitted a list according to which he started 6 matches in the starting
eleven (USD 6,000) and 2 matches in which he participated without starting (USD 1,400).
16. Moreover, the player held that he was entitled to receive three plane tickets throughout the
year, but that the club promised him to pay the equivalent to two of those tickets in a
payment.
b. Position of the Respondent
17. The club for its part failed to reply to the claim even though it was invited to do so.
Page 4
REF FPSD-4903
III. Considerations of the Single Judge of the DRC
a. Competence and applicable legal framework
18. 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 21 January 2022 and
submitted for decision on 6 April 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.
19. 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 (March 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 an Uzbek club.
20. 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 (March 2022 edition), and
considering that the present claim was lodged on 21 January 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
21. 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
22. 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.
Page 5
REF FPSD-4903
i. Main legal discussion and considerations
23. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the Claimant’s argumentation that the club failed to remit parts of
his remuneration, i.e. his salaries related to September and October 2021, as well as parts of
his salary for November 2021 plus bonuses and flight tickets.
24. The Respondent, for its part, failed to present its response to the claim of the player, in spite
of having been invited to do so. In this way, the Single Judge considered that the Respondent
renounced its right of defence and, thus, accepted the allegations of the Claimant.
25. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a decision
upon the basis of the documents already on file, in other words, upon the statements and
documents presented by the Claimant.
26. In this context, the Single Judge acknowledged that the Claimant’s allegations remained
uncontested and that the player is, in principle, entitled to the outstanding remuneration
claimed.
ii. Consequences
27. On account of the above, in accordance with the general legal principle of pacta sunt
servanda, the Single Judge decided to award the claimed salaries for September, October and
November (partially) 2021 in the amount of UZS 57,479,067 (2x UZS 24,000,000 plus UZS
9,479,067) along with 5% interest p.a. as of the due dates (1st day of the following month).
28. Moreover, the Single Judge noted that the player is requesting bonuses based on the
allegation that the club used to pay USD 1,000 per game and the wording in the contract.
Since the club failed to contest the Claimant’s allegations, the Single Judge decided to award
USD 7,400, which appear to be substantiated, plus 5% interest p.a. as of the due dates
iii. Compliance with monetary decisions
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.
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
a 10-day deadline to cure such breach of contract.
Page 6
REF FPSD-4903
31. 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.
32. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations it
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.
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.
34. 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.
35. 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.
36. 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.
37. 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.
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.
Page 7
REF FPSD-4903
d. Costs
39. 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.
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 concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
Page 8
REF FPSD-4903
IV. Decision of the Single Judge of the DRC
1.
The claim of the Claimant, Ifeanyi Ifeanyi, is partially accepted.
2.
The Respondent, FC Mashal, has to pay to the Claimant, the following amount(s):
- Uzbekistan Som (UZS) 24,000,000 as outstanding remuneration plus 5% interest p.a. as
from 1 October 2021 until the date of effective payment;
- UZS 24,000,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment;
- UZS 9,479,067 as outstanding remuneration plus 5% interest p.a. as from 1 December 2021
until the date of effective payment;
- USD 7,400 as outstanding bonus plus 5% interest p.a. as from 21 December 2021 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.
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
Page 9
REF FPSD-4903
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
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
Page 10