DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 18 November 2019,
by Jon New m an (US A),
DRC Judge,
on the claim presented by the player,
Pedro Gonçalo Batista Menes es , Portugal
represented by Mr José Duarte Reis
as Claimant
against the club,
Al Nahda S ports Club, Oman
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 1 January 2018, the Portuguese player, Luciano Pereira Mendes (hereinafter: the
Claimant) and the Omani club, Al Nahda Sports Club (hereinafter: the Respondent), signed
an employment contract valid as from 1 January 2018 until 31 May 2018.
2.
On 3 June 2018, the Claimant and the Respondent signed a debt acknowledgement.
3.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant, inter alia, a monthly salary of USD 2,300 (equivalent to R.O 887.800) and a bonus
of R.O 40, “in case of winning a match”.
4.
On 3 June 2018, the Claimant and the Respondent signed a document titled “The full
financial of the player” (hereinafter: the debt acknowledgement), by means of which the
Respondent undertook to pay to the Claimant the total amount of R.O 3,022.176, based on
the following remunerations:
a. R.O 887.800 as March salary;
b. R.O 887.800 as April salary;
c. R.O 887.800 as May salary;
d. R.O 87.779 as June salary;
e. R.O 30 as bonus the match of the Club of Oman;
f. R.O 40 as bonus the match of the Club of Mirbat;
g. R.O 200 in the case of winning third place in the league.
5.
By correspondence dated 9 April 2019, the Claimant put the Respondent in default of
payment of USD 7,832.32 (equivalent to R.O 3,022.176) setting a 15 days’ time limit in order
to remedy the default.
6.
On 9 May 2019, the Claimant lodged a claim against the Respondent in front of FIFA asking
that the Respondent be ordered to pay to him overdue payables in the amount of USD
7,832.32 corresponding to the relevant amounts in the debt acknowledgement.
7.
The Claimant further asks to be awarded interest of 5% “from the date when the salaries
were due until full payment”.
8.
In reply to the claim, the Respondent held that it will make the respective payment within
two months and asked the Claimant to send an update of his bank statements in order to
proceed with the transaction.
9.
In spite of having been invited to do so, the Claimant did not provide any comments to the
reply of the Respondent.
II.
Cons iderations of the DRC Judge
1.
First of all, the DRC Judge analysed whether he was competent to deal with the matter at
hand. In this respect, he took note that the present matter was submitted to FIFA on
Player Pedro Gonçalo Batista Meneses, Portugal/ Club Al Nahda Sports Club, Oman
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9 May 2019. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural
Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC Judge referred to art. 3 par. 2 and 3 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b)
of the Regulations on the Status and Transfer of Players (edition October 2019), the DRC
Judge is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Portuguese player and an Omani club.
3.
Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (edition October 2019,
June 2019 and June 2018), and considering that the present claim was lodged on 9 May 2019,
the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC Judge and the applicable regulations having been established,
the DRC Judge entered into the substance of the matter. In this respect, the DRC Judge
started by acknowledging all the above-mentioned facts as well as the arguments and
documentation on file. However, the DRC 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.
5.
Having said this, the DRC Judge acknowledged that following the conclusion of an
employment contract on 31 May 2018, the Claimant and the Respondent signed a debt
acknowledgement on 3 June 2018 by means of which the Respondent undertook to pay to
the Claimant a total amount of R.O 3,022.176 as established in I./4.
6.
Furthermore, the DRC Judge took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards
him in the amount of USD 7,832.32 corresponding to the relevant amounts established in
the debt acknowledgement.
7.
In this context, the DRC Judge took particular note of the fact that, on 9 April 2019, the
Claimant put the Respondent in default of payment of the aforementioned amount setting
a time limit of 15 days in order to remedy the default.
8.
Consequently, since the DRC Judge considered that the amount under the debt
acknowledgement was due immediately, he concluded that the Claimant had duly
proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the
creditor (player or club) must have put the debtor club in default in writing and have granted
a deadline of at least ten days for the debtor club to comply with its financial obligation(s).
Player Pedro Gonçalo Batista Meneses, Portugal/ Club Al Nahda Sports Club, Oman
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9.
Subsequently, the DRC Judge took into account that the Respondent, for its part, only stated
that it will make the respective payment within two months and asked the Claimant to send
an update of his bank statements in order to proceed with the transaction.
10.
In this context, the DRC Judge considered that the claim remains uncontested and the
arguments raised by the Respondent cannot be considered a valid reason for non-payment
of the monies claimed by the Claimant, in other words, the reasons brought forward by the
Respondent in its defence do not exempt the Respondent from its obligation to fulfil its
contractual obligations towards the Claimant.
11.
Consequently, the DRC Judge decided to reject the argumentation put forward by the
Respondent in its defence.
12.
On account of the aforementioned considerations, the DRC Judge established that the
Respondent failed to remit to the Claimant the total amount of R.O 3,022.176 corresponding
to to the relevant amounts established in the debt acknowledgement.
13.
In addition, the DRC Judge established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis. Taking into account the
documentation presented by the Claimant in support of his petition, the DRC Judge
concluded that the Claimant had only partially substantiated his claim pertaining to overdue
payables with pertinent documentary evidence. That is, the amount to be eventually
awarded to the Claimant has to be established in Omani Rial (R.O) in accordance with the
contract and not in USD as claimed by the Claimant.
14.
Consequently, the DRC Judge decided that, in accordance with the general legal principle of
pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the
total amount of R.O 3,022.176.
15.
In addition, taking into consideration the Claimant’s request, the DRC Judge decided to
award the Claimant 5% interest p.a on the above-mentioned amount as from 4 June 2018
until the date of effective payment.
16.
In continuation, taking into account the consideration under number II./13. above, the DRC
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.
17.
The DRC Judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Therefore, and in the absence of the
circumstance of repeated offence, the deciding body decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
Player Pedro Gonçalo Batista Meneses, Portugal/ Club Al Nahda Sports Club, Oman
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18.
In this respect, the DRC Judge wished to highlight 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.
19.
Furthermore, taking into account the consideration under number II./3. above, 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.
20.
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.
21.
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.
22.
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.
Decis ion of the DRC Judge
1. The claim of the Claimant, Pedro Gonçalo Batista Meneses, is partially accepted.
2.
The Respondent, Al Nahda Sports Club, has to pay to the Claimant the amount of
R.O 3,022.176 as overdue payables, 5% interest p.a as from 4 June 2018 until the date of
effective payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
A warning is imposed on the Respondent.
5.
The Claimant is directed to inform the Respondent, immediately and directly, preferably to
the e-mail address as indicated on the cover letter of the present decision, of the relevant
bank account to which the Respondent must pay the amounts mentioned under point 2.
above.
Player Pedro Gonçalo Batista Meneses, Portugal/ Club Al Nahda Sports Club, Oman
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6.
The Respondent shall provide evidence of payment of the due amount in accordance with
point 2. above to FIFA to the e-mail address [email protected], duly translated into one of the
official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount plus interest due in accordance with point 2. above is not paid
by the Respondent w ithin 45 day s as from the notification by the Claimant of the relevant
bank details to the Respondent, the Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9.
In the event that the aforementioned sum plus interest is still not paid by the end of the ban
of three entire and consecutive registration periods, the present matter shall be submitted,
upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
*****
Note relating to the motiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating
the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Player Pedro Gonçalo Batista Meneses, Portugal/ Club Al Nahda Sports Club, Oman
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