DRC Overdue Payables
Texto da decisão
REF FPSD-6347
Decision of the
Dispute Resolution Chamber
passed on 31 August 2022
regarding an employment-related dispute concerning the player Ralph
Max Alexander Kerrebijn
BY:
Dana Mohamed Al-Noaimi (Qatar)
CLAIMANT:
Ralph Max Alexander Kerrebijn, Netherlands
Represented by Dolf Segaar
RESPONDENT:
OFK Žarkovo, Serbia
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REF FPSD-6347
I.
Facts of the case
1.
On 1 February 2021, the Dutch player, Ralph Max Alexander Kerrebijn (hereinafter: the Claimant),
and the Serbian club, OFK Žarkovo (hereinafter: the Respondent) signed an employment contract
valid as from 1 February until 30 June 2021 (hereinafter: the contract).
2.
As per article 3 par 1 of the contract, the Claimant was entitled to “a net monthly salary in the amount
of [Serbian Dinar] RSD 33.843,12”
3.
Article 3 par.5 of the contract stipulated the following
“5) During the term of the Contract, the Club undertakes to provide to the Player the following
benefits: paid accommodation, paid meals etc.”
4.
By correspondence dated 26 April 2022, the Claimant sent a notice of default to the Respondent
for non-payment of his salaries since the commencement of the contract, in the total amount of
EUR 4,848, granting it 15 days to remedy the default.
II. Proceedings before FIFA
5.
On 13 June 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
6.
According to the Claimant, the Respondent failed to comply with its financial obligations as per the
contract from the commencement thereof.
7.
The requests for relief of the Claimant, were that the Respondent pay his outstanding
remuneration in the total amount of EUR 4,848 corresponding to the following:
(a) EUR 1728 as overdue salaries for the duration of the contract
(b) EUR 3000 as accommodation & meals (estimated cost of living and food for the duration of the
contract)
(c) EUR 120 as contract execution fees relating to the total cost of work visa in Serbia
8.
Additionally, the Claimant requested additional compensation equal to three months’ salary, being
EUR 864 (3x EUR 288).
9.
In conclusion the Claimant mentioned the following:
“The FIFA Dispute Resolution Chamber is requested to order the Club to pay to the Player on the
aforementioned
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bank account an amount of in total EUR 5712 within 14 days after rendering its decision on forfeit of a
penalty of EUR 2500 for each day it will be in breach of complying with the decision.”
b. Position of the Respondent
10. Notwithstanding the fact that the club was invited to provide its position to the player’s claim it
failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 13 June 2022 and submitted for
decision on 31 August 2022. Taking into account the wording of art. 34 of the June 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.
12. 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 (July 2022 edition), the Single Judge is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension between
a Dutch player and a Serbian club.
13. Subsequently, the Single Judge 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 (July 2022 edition), and considering that
the present claim was lodged on 13 June 2022, the March 2022 edition of said regulations
(hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
14. 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 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
15. 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
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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
16. The foregoing having been established, the Single Judge moved to the substance of the matter and
took note of the fact that the Claimant claims that the Respondent failed to comply with its financial
obligations as detailed in the contract, since commencement thereof.
17. In this context, the Single Judge acknowledged that her task was to determine, whether the claimed
amounts had in fact remained unpaid by the Respondent and, if so, whether the latter had a valid
justification for not having complied with its financial obligations.
18. Subsequently, the Single Judge noted that – after having been provided with the claim of the
Claimant - the Respondent failed to present its response. By not presenting its position to the
claim, the Single Judge was of the opinion that the Respondent renounced its right of defence and,
thus, accepted the allegations of the Claimant.
19. Furthermore, as a consequence of the aforementioned consideration, the Single Judge expressed
that she 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.
20. In view of the foregoing, the Single Judge referred to art. 13 par. 5 of the Procedural, according to
which a party that asserts a fact has the burden of proving it and went on to analyse the
documentation provided by the Claimant in support of his allegations.
21. Taking into account the documentation presented by the Claimant, the Single Judge concluded
that the Claimant had duly substantiated his claim pertaining to his outstanding salaries with
sufficient documentary evidence, however the Claimant failed to provide corroborating proof of
his actual expenditure and/or cost relating to the following, which led the Single Judge to reject this
part of his claim:
-
EUR 3000 as accommodation & meals (estimated cost of living and food for the duration of the
contract)
-
EUR 120 as contract execution fees relating to the total cost of work visa in Serbia
22. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda, which
in essence means that agreements must be respected by the parties in good faith, the Respondent
is held liable to pay the Claimant his outstanding salaries deriving from the contract concluded
between the parties
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23. As a consequence, and in accordance with the general legal principle of pacta sunt servanda, the
Single Judge decided that the Respondent is liable to pay to the Claimant the total amount of RSD
169,215.60 net which were outstanding under the contract, corresponding to RSD 33,843.12 net x
5 months’ salary (February until June 2021).
24. In addition, the Single Judge noted that the Claimant did not request any interest to be granted on
the outstanding amounts, hence no further interest was awarded in line with the principle ne ultra
petita.
25. The Single Judge remarked that the outstanding salaries are awarded in Serbian Dinar as the
contractually stipulated currency, which currency was additionally confirmed in the Transfer
Matching System, and not in Euros as requested by the Claimant.
26. Moreover, as to the Claimant’s request for additional compensation, the Single Judge referred to
art. 17 par. 1 lit. ii) of the Regulations and remarked that the contract of the Claimant came to a
natural expiration and was not terminated due to overdue payables and therefore additional
compensation as such shall not be awarded to the Claimant.
ii. Art. 12bis of the Regulations
27. In continuation, bearing in mind the foregoing considerations, 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. In this respect, she confirmed that the Respondent failed to
comply with its financial obligations in line with the contract, without a prima facie justification, and
was duly notified of the contractual breach by the Claimant, who granted the Respondent at least
10 days to cure its default, to no avail.
28. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations she has
competence to impose sanctions on the Respondent.
29. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which establishes that
a repeated offence will be considered as an aggravating circumstance and lead to a more severe
penalty.
30. Bearing in mind the above and taking into account that this is a first offense of the Respondent in
the past two years, the deciding body decided to impose a warning on the Respondent in
accordance with art. 12bis par. 4 lit. a) of the Regulations.
iii. Compliance with monetary decisions
31. 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
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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.
32. 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.
33. 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.
34. 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.
35. 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
36. 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.
37. 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.
38. Lastly, the Single Judge concluded her deliberations by rejecting 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, Ralph Max Alexander Kerrebijn, is partially accepted.
2.
The Respondent, OFK Žarkovo, has to pay to the Claimant, the following amount:
RSD 169,215.60 net as outstanding remuneration
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 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 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
article 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).
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
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