DRC Overdue Payables
Texto da decisão
REF FPSD-6152
Decision of the
Dispute Resolution Chamber
passed on 22 June 2022
regarding an employment-related dispute concerning the player
Tranquilin Kalomji Mwepu
BY:
Angela Collins (Australia)
CLAIMANT:
Tranquilin Kalomji Mwepu, Congo DR
Represented by Mr Linos Chalwe
RESPONDENT:
Indeni FC, Zambia
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REF FPSD-6152
I. Facts of the case
1.
In August 2019, the Congolese player Tranquilin Kalomji Mwepu (hereinafter the Claimant
or the Player) and the Zambian club Indeni FC concluded (hereinafter the Respondent or
the Club) concluded an Employment Agreement (hereinafter the First Employment
Agreement) valid as from 31 July 2019 until and 31 July 2021.
2.
In Clause 3 of the First Employment Agreement, the Claimant and the Respondent (jointly
referred to as the Parties) agreed, inter alia, upon the following remuneration:
“The Player shall obtain Upkeep allowance of:
o ZMW 7,000.00 – Regular Player / Class A category of the club’s technical
assessment
The Player shall be entitled to training allowance as follows:
o ZMW 40.00 per day every Saturday of the week
The Player shall be entitled to winning allowance as follows:
o ZMW 1,500.00 per every game won, draw games shall be at discretion of the
executive committee for home games and ZMW 500.00 for Away games.
The Player shall be entitled to Gratuity as follows:
o Two months Upkeep allowance for each year served for Regular Player
(Note that Gratuity shall only be due on completion of the full contract or termination of
contract by the club on pro rata basis. The player forfeits gratuity on termination of
employment before contract duration and end of contract arising from suspension or ban
from FAZ or club).”
3.
On 1 October 2020, the Parties signed a new employment agreement (hereinafter the
Second Employment Agreement) valid as from 1 October 2020 until and 1 October 2022.
4.
In accordance with Clause 5 of the Second Employment Agreement, the Parties agreed
upon the following remuneration:
“5.01 The players total remuneration shall be K 11,270.00 Net commencing 1st October 2020
(a) A salary at the basic rate to ZMW 0.000.00 per month
(b) Housing Allowance @ 30% of ZMW 0.000.00 per month
(c) Medical Allowance @ 25% of ZMW 0.000.00 per month
(d) The league game win Allowance of ZMW 2.500.00
(e) Draw Allowance ( away game only) ZMW 1.000.00
(f) Training Allowance per week ZMW 250.00
5.02 GRATUITY
Gratuity of 25% of the basic monthly salary earned during the actual period of the Agreement
shall be paid at the expiration of the agreement.
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5.03 RELEASE CLAUSE
A release clause of ZMW 500.000.00 shall be paid to INDENI FC in an event that the player
moves to another club locally during the duration of the contact period and the player shall
be entitled to 10% of the amount.
5.04 FREE AGENT FEE ( SIGN ON FEE )
No free agent fee is due on this player since this is a revision of an already existing contract
with INDENI.”
5.
On 5 April 2022, the Claimant put the Respondent in default, requesting the gratuity for
the season 2019/2020, the gratuity for the period from October 2020 to August 2021 and
the 10% of the release clause. The Claimant granted the Respondent a deadline of 10 days
to pay the outstanding amounts, however, to no avail.
6.
In August 2021, the Respondent and the Zambian club Power Dynamos FC signed a
transfer agreement (hereinafter the Transfer Agreement) concerning a permanent transfer
of the Claimant from the Respondent to Power Dynamos FC.
7.
The conditions of said transfer were the following:
“1. OUTRIGHT PURCHASE
The Player shall be sold at a fee of One Hundred and Fifty Thousand Kwacha
-K 150,000.00 net.
2.CONDITIONS OF THE OUTRIGHT PURCHASE:
With Respect to Player development and exposure; during the first Season of the sale, IFC shall
be entitled to 15% of the Player transfer value should the Player be sold to another club locally
or internationally.
During the 2nd season of this sale agreement, IFC shall be entitled to 10% of the Player Transfer
value should the Player be sold to another club locally or internationally.
During the 3rd Season to this sale agreement, IFC Shall be entitled to 0% of the Player Transfer
value should the Player be sold to another club locally or internationally.
Player's fee and FAZ 20% fee shall be borne by Power Dynamos Football Club.”
II. Proceedings before FIFA
8.
On 24 May 2022, the Claimant filed the claim at hand before FIFA. A brief summary of the
position of the Parties is detailed in continuation.
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a. Position of the Claimant
9.
The requests for relief of the Claimant were the following:
−
−
−
−
“ZMW 94 993 as outstanding salaries + 5% interest as from the relevant payment
dates until the date of effective payment, specified as follows:
ZMW 14 000 + 5% interest p.a. as from 1 October 2020;
ZMW 30 993 + 5% interest p.a. as from 1 September 2021;
ZMW 50 000 + 5% interest p.a. as from 1 September 2021”
10. The Claimant based his claim on the legal principle pacta sunt servanda and provided for
the following break-down:
−
“A gratuity amounting to two months of upkeep allowance for each served year under
the First Contract. As the monthly upkeep allowance amounted to ZMW 7 000, the
player should have received ZMW 14 000 for the first served season 2019/2020;
−
A gratuity of 25% of the monthly remuneration earned during the actual period
of the Second Contract and payable at the end of this contract according to article
5.02 of the agreement. Given that the monthly remuneration was ZMW 11 270 and that
the contract was terminated 11 months later (August 2021), the player should have
received ZMW 30 993 (2817,5 x 11) for said period.
−
10% of the release clause of ZMW 500 000 as per article 5.03 of the Second Contract,
which amounts to ZMW 50 000.”
b. Position of the Respondent
11. In its reply, the Respondent asserted that while it has “no objection with the details
presented, we do not agree with the last claim of ZMW 50,000.00.”
12. In this respect, the Respondent pointed to the Clause 2 of the Transfer Agreement,
reading that “the Player’s fee and FAZ 20% fee shall be borne by Power Dynamos Club”.
13. Finally, the Respondent proposed to settle the matter amicably as it argued that it is
currently facing financial problems due to “erratic funding”.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
14. First of all, the Single Judge (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 24 May 2022 and submitted for decision on
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22 June 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.
15. 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 (March 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 Congolese player and a Zambian club.
16. 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 (March 2022 edition),
and considering that the present claim was lodged on 6 May 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
17. 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
18. 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 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
19. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that this is a claim of a player against a club concerning
outstanding payments and that the legal basis for the claim are two employment
contracts for different periods of time.
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20. In this context, the Single Judge firstly acknowledged that it remained undisputed
between by the Parties that the sell-on fee as well as the gratuity payments based on both
agreements, i.e. ZMW 14,000 (based on the First Employment Agreement) and
ZMW 29,583.75 (based on the Second Employment Agreement), remained outstanding.
21. Nonetheless, the Single Judge noted that the Respondent disputed its obligation to make
the payment of the release clause, established in Clause 5.03 of the Second Employment
Agreement: “A release clause of ZMW 500.000.00 shall be paid to INDENI FC in an event that
the player moves to another club locally during the duration of the contact period and the
player shall be entitled to 10% of the amount.”
22. In this respect, the Single Judge acknowledged the arguments of the Respondent that, in
line with Clause 2 of the Transfer Agreement, the responsible party for the payment is the
new club, i.e. Power Dynamos FC.
23. After a due analysis of Clause 2 of the Transfer Agreement, the Single Judge was of the
opinion that the said clause is ambiguous and unclear. Thus, the Single Judge rejected the
argumentation of the Respondent and concluded that the latter is liable for the payment
of 10% of the transfer fee to the Claimant, i.e. 10% of ZMW 500,000.
ii. Consequences
24. Having stated the above, the members of the Single Judge turned her attention to the
question of the consequences of such unjustified non-payment of overdue payables by
the Respondent.
25. The Single Judge reiterated that the outstanding remuneration, coupled with the specific
requests for relief of the Player, are equivalent to (i) ZMW 14,000 based on the First
Employment Agreement; (ii) ZMW 29,583.75 based on the Second Employment
Agreement and (iii) ZMW 50,000 based on the Second Employment Agreement and linked
to the transfer of the Player to the new club.
26. 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 above-mentioned amounts.
27. In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Single Judge in this regard, the latter decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amounts as follows:
−
On the amount ZMW 14,000 of 1 October 2020 until the day of the effective
payment;
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−
On the amount ZMW 29,583.75 as of 1 September 2021 until the day of the
effective payment;
−
On the amount ZMW 50,000, plus 5% p.a. as of 1 September 2021 until the day of
the effective payment.
iii. Art. 12bis of the Regulations
28. 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.
29. To this end, the Single Judge confirmed that the Claimant put the Respondent in default
of payment of the amounts sought, which had fallen due more than 30 days before, and
granted the Respondent a 10-day deadline to cure such breach of contract.
30. Accordingly, the Single Judge acknowledged that the Respondent had delayed a due
payment without a prima facie contractual basis, i.e. that the criteria enshrined in
art. 12bis of the Regulations was met in the case at hand.
31. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that this is the 1st offense by the Respondent within the last two
years, the Single Judge decided to impose a warning, in accordance with art. 12bis par. 4
lit. a) of the Regulations.
32. In this connection, the Single Judge highlighted that repeated offence in the future will be
considered as an aggravating circumstance and lead to a more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
iv. Compliance with monetary decisions
33. 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 her 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.
34. 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
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overall maximum duration of the registration ban shall be of up to three entire and
consecutive registration periods.
35. 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.
36. 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.
37. 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
38. 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, she decided that no procedural costs were to be
imposed on the parties.
39. 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.
40. 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, Tranquilin Kalomji Mwepu, is accepted.
2.
The Respondent, Indeni FC, has to pay to the Claimant, the following amount(s):
- ZMW 14,000 as outstanding amount plus 5% interest p.a. as from 1 October 2020 until
the date of effective payment;
- ZMW 30,993 as outstanding amount plus 5% interest p.a. as from 1 September 2021 until
the date of effective payment;
- ZMW 50,000 as outstanding amount plus 5% interest p.a. as from 1 September 2021 until
the date of effective payment.
3.
A warning is imposed on the Respondent.
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.
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).
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