DRC Overdue Payables
Texto da decisão
REF. FPSD-15047
Decision of the
Dispute Resolution Chamber
passed on 7 August 2024
regarding an employment-related dispute concerning the player Fideline
Ngoy Mudimbi
BY:
Jorge GUTIÉRREZ, Costa Rica
CLAIMANT:
Fideline Ngoy Mudimbi, Congo DR
Represented by FIFPro Division Africa
RESPONDENT:
Amed Sportif Faaliyetler, Türkiye
pg. 2
REF. FPSD-15047
I. Facts of the case
1.
The Congolese player, Fideline Ngoy Mudimbi (hereinafter: the Player or the Claimant) and
the Turkish club, Amed Sportif Faaliyetler (hereinafter: the Club or the Respondent) entered
into an employment contract (hereinafter: the Contract) with the following terms and
conditions, quoted verbatim:
“1- A contract has been made with the football player for the 2023-2024 season.
2- An agreement has been made with the football player or a monthly salary of 1400 S.
Salary will be paid monthly during the season and at the end of the season. A monthly
minimum wage agreement has been made for 3 football players and based on the 10month minimum wage agreement, the minimum wage will be paid when the league
starts or a lump sum payment will be made at the end of the season.
4- If the football player acts contrary to the Turkish Code of Obligations No. 6098 and the
professional football player contract; He irrevocably accepts, declares and undertakes
that he will not be able to benefit from the provisions of the protocol - especially the
provisions that provide financial benefits - if he does not resolve the discrepancy within
the time given by the club.
5- The player cannot visit the club doctor or the hospital with which the club has a
contract without obtaining written permission from the club. He cannot receive treatment
at any other hospital, and he undertakes that the health report he received at another
hospital will not be valid. In case of contradiction, the provisions of the protocol will be
invalid.
6- [The Club] Internal Disciplinary Directorate accepted by the football player it is a part
of the protocol agreement and the football player must comply with it.
7- Parties shall notify the address shown in the protocol through a notary public in cases
of behavior contrary to the protocol.
8- This protocol has been drawn up in the presence of the parties at [the Club] on
17.07.2023 as (8) articles (2) pages and (2) copies, and the parties have stated that they
have read and understood the protocol clearly and loudly, and have signed this protocol
without being subject to any influence and with their express will, has signed”.
2.
According to the Player, the Contract was signed on 2 August 2023 and backdated.
However, the Club claims that it was actually signed on 17 July 2023.
3.
On 22 May 2024, the Player put the Club in default and demanded payment of her salary
for March 2024. In addition, the Player claimed that her salary for May 2024 was about to
pg. 3
REF. FPSD-15047
become due, so she expected to be paid in a timely manner. She gave the Club 10 days to
remedy the breach.
4.
According to the information retrieved from the FIFA Transfer Matching System (TMS), the
sporting season in Türkiye would run from 14 August 2023 to 30 June 2024.
II. Proceedings before FIFA
5.
On 27 June 2024, the Player filed the claim at hand before FIFA. A brief summary of the
parties’ position is set out below.
a. Player’s position
6.
The Player claimed that the Contract was valid until May 2024, but that the Club had failed
to pay her remuneration for March and May 2024. As a result, she requested to be awarded
USD 2,800 plus 5% interest p.a. from 1 April 2024.
7.
The Player’s requests for relief were as follows, quoted verbatim:
“As a consequence of all of the above, the Player is requesting the FIFA DRC to apply the
corresponding sanctions to the Club on the basis of art. 12bis of the FIFA RSTP and to
order the Club to pay her the following outstanding amount:
•
USD 1400 plus 5% interests p.a. as of 1 April 2024 until the effective day of
payment;
•
USD 1400 plus 5% interests p.a. as of 1 April 2024 until the effective day of
payment”.
b. Club’s position
8.
On 23 July 2024, the Club submitted its reply to the claim.
9.
In its submission, the Club contended that the football season and the match calendar of
the Turkish Football Federation (TFF) Women's Super League were changed on 11 August
2024 i.e., after the signing of the Contract. As a result, the Club claimed that the Contract
should be valid exclusively for the duration of the season (i.e., 8 months) instead of the 10
months originally foreseen.
10. The Club concluded its submission as follows, quoted verbatim:
“Although the Player claimed that the contract with the Club was signed on August 8r
2023, the contract was signed on July 17, 2023. Moreover, the date of signing of the
pg. 4
REF. FPSD-15047
contract can be understood from the contract submitted by the [Player] as an annex to
the petition. At the time of signing the contract, the contract was made considering the
old Play-Off practice and the 10-month playing period. Because the Federations
procedure was like that. However, with the new decision taken by the Federation, the 10month season duration has been reduced to 8 seasons. Since it was not possible for the
Club to predict the new decision to be taken at the time of signing the contract, a possible
playing period of 10 months was agreed in the contract. As a result of the new decision
made by the Federation, the Club playing in the League played the first match of the
2023-2024 season against 1207 Antalya Spor Kulubu on 27 August 2023, and the last
match against Karadeniz Eregli Belediye Spor on 5 May 2024. As can be understood from
the dates specified, the League lasted 8 months and 8 days.
In summary and conclusion the Player requested a monthly fee for the periods when the
League ended. The Player only played for 8 months and 8 days depending on the Club.
The Club made regular salary payments to the Player during the matches. In short, the
player demands a fee for a period when she is not working and playing. The Club
respected the contract with the Player. The request made by the Player regarding salary
receivables and interest is unfair and this request should not be accepted.
We respectfully request that you reject the Player’s request”.
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: 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 27 June 2024 and submitted for
decision on 7 August 2024. Taking into account the wording of art. 34 of the March 2023
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. Furthermore, 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 par. 1 lit. b) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Dispute
Resolution Chamber 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 Turkish club.
13. 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 (June 2024 edition), and
considering that the present claim was lodged on 27 June 2024, the cited edition of said
pg. 5
REF. FPSD-15047
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 he may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the TMS.
c. Merits of the dispute
15. Having established the competence and the applicable regulations, 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 he will refer only to the facts, arguments and documentary evidence, which
he considered pertinent for assessing the matter at hand.
i. Main legal discussion and considerations
16. The Single Judge then moved to the substance of the matter, noting that it concerned a
claim for overdue payables.
17. In particular and having carefully analysed the parties’ submissions, the Single Judge
outlined that:
•
the Player requested the payment of her salaries for March and May 2023; and
•
the Club, on the other hand, confirmed that, due to the change in the calendar
season and the reduction in the number of official matches played in the TFF
Women's Super League, it had only paid 8 out of the 10 months originally provided
for in the Contract. According to the Club, the Player should only be entitled to her
remuneration for the competition season, as no services were rendered after this
period.
18. The Single Judge then determined that his task was to establish whether the Player should
indeed be entitled to any remuneration for the two last months on Contract (i.e., April and
May 2023) vis-à-vis the match calendar in Türkiye.
pg. 6
REF. FPSD-15047
19. Having noted the above, the Single Judge turned his attention to the wording of the
Contract and highlighted that it does not expressly address its duration. Indeed, the Single
Judge acknowledged that the only reference in this regard is: “for the 2023/2024 season,
which is worth 10 months of compensation”. Against this outset, the Single Judge considered
that there was no indication whatsoever that (i) the contractual term would be linked to the
duration of the TFF Women's Super League, the official TFF season (amateur) and/or the
match calendar per se; or, most important that (ii) the Player would only be entitled to her
remuneration for said period.
20. Consequently, the Single Judge was firm to determine that if the Club intended to make the
duration of the Contract dependent on the competition season, it should have done so in
writing and in a clear fashion, for the avoidance of any doubt (in dubio contra stipulatorem).
However, given the dubious wording and the direct reference in the Contract to the 10month salary, the Single Judge decided that the Club’s position could not succeed.
21. The Single Judge also found it noteworthy that, although the Club asserted that the Player
ceased to render services during the first week of May 2024, it failed to provide any
evidence in this regard. In particular, the Single Judge considered that the Club has not
demonstrated that it reached an agreement with the Player for her early release, let alone
provided any explanation as to why the March and May salaries (even if pro rata) were not
paid at all. On the contrary, the Club merely submitted a copy of the TFF regulations, which
-in the Single Judge’s view- was not sufficient to justify a unilateral amendment of the
contractual terms binding the two parties.
22. Therefore, the Single Judge decided that the Player be awarded the additional salaries in
accordance with the general legal principle of pacta sunt servanda, i.e., USD 2,800.
23. In addition, taking into consideration the Player’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award her
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates
(i.e., 1 April 2024 and 1 June 2024, respectively) until the date of effective payment.
ii. Art. 12bis of the Regulations
24. Having established the above, 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.
25. 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 for more than 30 days, and granted the Club
with 10 days to cure such breach of contract.
pg. 7
REF. FPSD-15047
26. Accordingly, the Single Judge also confirmed that the Club had delayed a due payment
without a prima facie contractual basis. It followed that the criteria enshrined in art. 12bis
of the Regulations were met in the case at hand.
27. 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.
28. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
29. 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.
30. 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.
31. Therefore, bearing in mind the above, the Single Judge decided that the Club must pay the
full amount due (including all applicable interest) to the Player within 45 days of notification
of the decision, failing which, at the request of the Player, 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 Club in
accordance with art. 24 par. 2, 4, and 7 of the Regulations.
32. The Club shall make full payment (including all applicable interest) to the bank account
provided by the Player in the Bank Account Registration Form, which is attached to the
present decision.
33. 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.
pg. 8
REF. FPSD-15047
d. Costs
34. 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.
35. 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.
36. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-15047
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Fideline Ngoy Mudimbi, is partially accepted.
2.
The Respondent, Amed Sportif Faaliyetler, must pay to the Claimant the following
amount(s):
- USD 1,400 as outstanding remuneration plus 5% interest p.a. as from 1 April 2024 until
the date of effective payment; and
- USD 1,400 as outstanding remuneration plus 5% interest p.a. as from 1 June 2024 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, 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
pg. 10
REF. FPSD-15047
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 Governing the Football
Tribunal).
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
pg. 11