DRC Overdue Payables
Texto da decisão
REF FPSD-7557
Decision of the
Dispute Resolution Chamber
passed on 11 January 2023
regarding an employment-related dispute concerning
the player Marcelo Dos Santos Ferreira
BY:
Gonzalo DE MEDINILLA (Spain),
Single Judge of the Dispute Resolution Chamber
CLAIMANT:
Marcelo Dos Santos Ferreira, Portugal
Represented by Mr Nuno Rêgo
RESPONDENT:
Club Saudi Al Tai Club, Saudi Arabia
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REF FPSD-7557
I. Facts of the case
1. On 17 July 2021, the player Marcelo Dos Santos Ferreira and the club Saudi Al Tai Club
concluded an employment contract valid as from 15 July 2021 until 15 June 2022.
2. According to art. 5.1 of the contract, the player was entitled to USD 55,000 net per month.
3. In addition, following art. 5.2 of the contract, the player was entitled to USD 150,000 as
“advanced contract for the first year”, to be paid “when the player is passing the medical
examination”.
4. Moreover, following art. 5 par. 3 of the agreement, the player was entitled to a bonus of
USD 30,000 “in the event that the club remains in the Saudi Premier League”, to be paid at the
end of the season.
5. On 12 June 2022, the parties concluded a complementary agreement by means of which
the contract was extended until 30 June 2022.
6. The complementary agreement stipulated the following:
“Item 4: Obligations of the [club]:
1. The [club] is obligated to Paid sum of money (35,000 dollars) Thirty-five thousand dollars to the
[player] of This is at the end of the agreement
2. The [club] is committed to all its obligations as stated in the basic professional contract signed
on 17/07/2021 AD.”
7. On 30 August 2022, the player, via his legal representative, sent a default notice, and
requested the payment of the total amount of USD 141,229.18 within 10 days, detailed as
follows:
“a) USD 27.500 corresponding to half of the salary due on 31 July 2021, as established in
clause 5.1 of the Employment Contract.
b) USD 27.500 corresponding to half of the salary due on 30 June 2022, as established in
clause 5.1 of the Employment Contract.
c) USD 35.000 corresponding to the salary due on 30 June 2022, as established in clause 4 of
the Agreement signed on 12 June, 2022.
d) USD 30.000 corresponding to to bonus established in clause 5.3 of the Employment
Contract for the club to remaining in the Saudi Premier League.
e) SAR 80.000 (equivalent to USD 21.229,18), corresponding to to prize bonuses for the
victory against Al-Hazem Sport Club.
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REF FPSD-7557
II. Proceedings before FIFA
8. On 21 September 2022, the player Marcelo Dos Santos Ferreira lodged a claim before for
outstanding remuneration and requested the payment of USD 86,557.74 net, plus 5%
interest p.a.
9. The player detailed his claim as corresponding to the amounts mentioned in his default
notice (USD 141,229.18), minus the amount of USD 54,671.44, which the club paid on 19
September 2022.
10. In its reply, the club stated that it paid the following amounts:
- SAR 207,212.50 or USD 55,000 on 31 August 2022, corresponding to the salary of “June”;
- SAR 28,273.50 or USD 7,500, on 23 September 2022;
- SAR 113,094 or USD 30,000, on 22 September 2022
11. The club explained that “the sports season was extended to the end of June, and accordingly, the
two parties agreed to extend the contract for 15 days to the end of 30 June 2022, and the player’s
salary for the renewal period would be USD 35.000, and therefore the total owed to the player for
the month of June was USD 62.500.”
12. In his replica, the Claimant argued that “contrary to the Respondent's allegation, the total
salary due to the player for the month of June 2022, by virtue of the renewal of the employment
contract, was USD 90,000.00 (55,000.00 + 35,000.00).”
13. Hence, the Claimant requested the payment of the following amounts:
- USD 27,500, for half of the salary due on 31 July 2021;
- USD 27,500, “regarding the salary due on 30 June 2022”;
- SAR 80,000, as prize bonus for the victory against Al Hazem SC.
14. In support of his request for the match bonus, the player attached a written statement
from another player, stating that, “at the end of the match against Al-Hazem Sport Club, the
President of the club came to the locker room and obliged to pay each player an individual prize
in the amount of SAR 80,000.00 for the victory.”
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III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge or the Judge) analysed whether he was competent to deal with the
case at hand. In this respect, it took note that the present matter was presented to FIFA
on 21 September 2022 and submitted for decision on 11 January 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.
2.
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, the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between an Portuguese player and a Saudi club.
3.
Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par.
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 21 September 2022, the October
2022 edition edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
b. Burden of proof
4.
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
5.
Its 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
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considerations he will refer only to the facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties concluded an employment contract
which was initially valid as from 15 July 2021 until 15 June 2022, according to which he was
entitled to USD 55,000 net per month.
7.
In this respect, the Single Judge noted that, on 12 June 2022, the parties concluded a
complementary agreement by means of which the contract was extended until 30 June
2022 (i.e. for two additional weeks, from 15 June 2022 until 30 June 2022).
8.
As to the remuneration, the Judge also observed that the complementary agreement
stipulated the following:
“Item 4: Obligations of the [club]:
1. The [club] is obligated to Paid sum of money (35,000 dollars) Thirty-five thousand dollars to
the [player] of This is at the end of the agreement
2. The [club] is committed to all its obligations as stated in the basic professional contract
signed on 17/07/2021 AD.”
9.
After duly analysing the contents of the aforementioned clause, the Judge observed that
its contents are relatively ambiguous since it simultaneously implied that the player would
earn an additional amount of USD 35,000 for the extension of the contract, while at the
same time, confirmed that all the obligations remained unchanged.
10. Given the above and taking into account the specific circumstances concerning the
contractual relationship at stake, the Single Judge recalled the relevance of the principle
of in dubio contra proferentem.
11. For this reason, the Single Judge arrived to the conclusion that, de facto, by signing the
complementary agreement, the club (a) accepted to pay an additional amount of USD
35,000 for the extension, while (b) the remaining obligations remained unchanged. Thus,
the Judge considered that, in addition to the amount of USD 35,000, the player was
entitled to his full salary of USD 55,000 net for the entire month of June 2022.
12. Thereafter, the Judge took note that the claimant lodged a claim for outstanding
remuneration, and initially requested the payment of USD 141,229.18. Yet, following the
reply of the club to the claim, the Judge further observed that the player amended his
claim and requested the payment of the following amounts:
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REF FPSD-7557
- USD 27,500, for half of the salary due on 31 July 2021;
- USD 27,500, “regarding the salary due on 30 June 2022”.
13. On the other hand, the Judge acknowledged that, despite being invited to do so, the
Respondent failed to provide its duplica.
14. In view of the above and after duly examining the documentation gathered during the
course of the investigation and, in particular, the payment receipts provided by the club,
the Single Judge arrived to the conclusion that the amounts of USD 27,500, for half of the
salary due on 31 June 2021, as well as USD 27,500 (for the extension between 15 June
until 30 June 2022 and corresponding to half of his monthly salary of USD 55,000, as
explained in the previous paragraphs), remain outstanding. On this note, the Single Judge
highlighted that the club did not provide its comments to the amendment of the claim as
formulated by the player.
15. 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 USD 55,000 net, as agreed in the original contract as well as in its complementary
agreement.
16. 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 dates.
17. Moreover, as to the claimed match bonus requested by the player, the Single Judge noted
that it is not based in a written agreement and only in an alleged oral statement from the
club’s president. After duly examining the documentation provided by the player, the
Single Judge understood that it is clearly insufficient to determine that said bonus was
agreed upon. As a result, the Judge rejected this part of the player’s claim.
ii. Compliance with monetary decisions
18. Finally, taking into account the applicable Regulations, the 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.
19. In this regard, the 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.
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20. Therefore, bearing in mind the above, the 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.
21. The Respondent shall make full payment (including all applicable interest) to the bank
account provided by the Claimant in the Bank Account Registration Form.
22. The 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.
23. In continuation, taking into account the previous considerations, the 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.
24. The DRC Judge established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. In this context, the Single Judge
highlighted that the Respondent had already been found to have delayed a due payment
for more than 30 days without a prima facie contractual basis. In view of the above,
the DRC Judge decided to impose a warning of the Regulations on the Respondent.
25. 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.
d. Costs
26. The 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 Judge decided that no procedural costs were to be imposed on
the parties.
27. Likewise and for the sake of completeness, the 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.
28. Lastly, the Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
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REF FPSD-7557
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Marcelo Dos Santos Ferreira, is partially accepted.
2.
The Respondent, Saudi Al Tai Club, has to pay to the Claimant, the following amounts:
- USD 55,000 as outstanding remuneration plus interest p.a. as follows:
- 5% interest p.a. over the amount USD 27,500 of as from 1 August 2021 until the date of effective payment;
- 5% interest p.a. over the amount USD 27,500 of as from 1 July 2022 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 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.
6.
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.
7.
This decision is rendered without costs.
8.
A warning (art. 12 bis of the Regulations) is imposed on the Respondent.
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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