DRC Overdue Payables
Texto da decisão
REF. FPSD-8457
Decision of the
Dispute Resolution Chamber
passed on 15 March 2023
regarding an employment-related dispute concerning the player
Heritier Nzinga Luvumbu
BY:
Jon NEWMAN (USA)
CLAIMANT:
Heritier Nzinga Luvumbu, Congo DR
Represented by Mr. Thomas Joseph Bodiong
RESPONDENT:
CD Primeiro de Agosto, Angola
Represented by Mr. Domingos Silva Alves
pg. 2
REF. FPSD-8457
I. Facts of the case
1.
On 1 August 2021, the Congolese player Heritier Nzinga Luvumbu (hereinafter: the
Claimant) and the Angolan club CD Primeiro de Agosto (hereinafter: the Respondent)
concluded an employment contract (hereinafter: the contract), valid as from the date of
signature until 30 June 2022.
2.
In accordance with clause 2 of the contract:
“1. Pour le bénéfice visé à l’article précédent, le Club s’engage à verser au JOUEUR, pendant la
durée du contrat, les rémunérations globales brutes et variables, suivantes, qui sont déjà
incluses la proportionnelle correspondant à l’indemnité de vacances, l’indemnité de Noël et la
valeur du loyer de la maison, et son exigibles le 10 du mois suivant celui auquel ils se rapportent :
A) Pour la saison sportive 2021/2022 : Le montant d’Akz. 93.008.471.,05 (Quatre-vingt-treize
million et huit mille quatre cent soixante et onze kwanzas et cinq cents), payés en 11
mensualités, égales et successives d’un montant d’Akz. 8.455.315.55 (Huit Millions Quatre
Cent Cinquante Cinq Mille Trois Cent quinze Kwanzas Cinquante Cinq Cents), sous réserve
de remises légales”.
Free translation
“For the benefit referred to in the preceding article, [the Respondent] undertakes to pay [the
Claimant], during the term of the contract, the following gross and variable global
remunerations, which are already included the proportional amount corresponding to the
vacation allowance, the Christmas allowance and the value of the rent of the house, and are
due on the 10th of the month following the one to which they refer:
A) For the 2021/2022 sports season: The amount of Akz. 93,008,471.05 (Ninety-three million
and eight thousand four hundred and seventy-one kwanzas and five cents), paid in eleven
monthly installments, equal and successive in the amount of Akz. 8,455,315.55 (Eight
Million Four Hundred and Fifty Five Thousand Three Hundred and Fifteen Kwanzas Fifty
Five Cents), subject to legal allowances”.
3.
In accordance with clause 2.3 of the contract, the Player was entitled to a signature bonus
of Angolan Kwanza (AOA) 25,000,000, to be paid 30 days after the signature of the contract.
4.
In accordance with clause 4 of the contract:
“1. Les obligations fiscales prévues par la Loi (IRT) seront payées par le JOUEUR, et le CLUB devra
les déduire de la rémunération telle qu’établie par la loi.
2. Le CLUB peut déduire de la rémunération du JOUEUR le montant des amendes qui lui ont été
infligées pour violation des règles disciplinaires lors de la compétition”.
Free Translation
pg. 3
REF. FPSD-8457
“The tax obligations provided for in the Act (IRT) shall be paid by the [Claimant], and [the
Respondent] shall deduct them from the compensation as established by law.
2. [The Respondent] may deduct from [the Claimant]'s remuneration the amount of any fines
imposed on [the Claimant] for violations of disciplinary rules during the competition”.
5.
In accordance with clause 12 of the contract:
“La législation du travail de la République d’Angola et de la FIFA et les règlements de la FAF
s’appliquent au présent contrat, en particulier le règlement sur le statut et le transfert des
joueurs de ces organismes associatifs ”.
Free translation
“The labor laws of the Republic of Angola and FIFA and the regulations of the FAF shall apply to
this contract, in particular the regulations on the status and transfer of players of these
associations.”
6.
In accordance with clause 13 of the contract:
“1. Les parties rechercheront les moyens de dialogue pour résoudre tous les conflits résultant de
l’interprétation et de l’exécution du présent contrat, conformément aux principes de bonne foi.
A défaut d’entente en ce sens, les parties soumettront la solution des litiges à l’arbitrage
conformément à l’article 64 des Status de la FIFA (FÉDÉRATION INTERNATIONALE DE FOOTBALL
ASSOCIÉE).
2. Les procédures établies par la loi 16/03, du 25 juillet – Loi sur l’arbitrage volontaire
s’appliqueront à l’arbitrage, avec la Cour d’arbitrage composée de trois arbitres, chaque partie
choisissant un arbitre, qui choisira un tiers présidant.
3. Les arbitres doivent être choisis parmi des personnes ayant au moins cinq ans d’expérience
dans la conduite sportive, de préférence avec un diplôme en droit.
4. La Cour d’arbitrage fonctionnera é Luanda et ses décisions sont définitives et obligatoires, les
parties renonçant à tout appel ».
Free translation :
1. The parties shall seek the path of dialogue to resolve all disputes arising from the
interpretation and performance of this contract in accordance with the principles of good faith.
If there is no understanding by this means the parties will submit the settlement of disputes to
arbitration in compliance with Article 64 of the FIFA Statutes (Federation Internationale de
Football Association)
2.The procedures established by Law 16/03 of July 25 (Law on Voluntary Arbitration) shall apply
to arbitration, and the Arbitral Tribunal consists of three arbitrators, each of the parties
choosing an arbitrator, who shall choose a third party who presides.
3. Chosen arbitrators must have at least five years of experience of sports and preferably be
licensed in law.
4. The Arbitral Tribunal shall operate in Luanda and its decisions are final and binding to comply,
with the parties renouncing any appeal”.
pg. 4
REF. FPSD-8457
7.
By correspondence dated 28 October 2022, the Claimant put the Respondent in default of
payment of AOA 28,800,000 regarding the payment of the overdue salaries and signature
bonus; a 10 days’ time limit in order to remedy the default.
8.
By correspondence dated 15 November 2022, the Claimant put the Respondent in default
of payment of AOA 28,800,000 regarding the payment of the overdue salaries and
signature bonus; a 5 days’ time limit in order to remedy the default.
II. Proceedings before FIFA
9.
On 2 December 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
10. The Claimant lodged a claim against the Respondent asking that the Respondent be
ordered to pay to him overdue payables in the amount of AOA 26,965,945.15
corresponding to April, May and June unpaid salaries (i.e., AOA 25,365,945.15) and the
balance of the signature bonus (AOA 1,600,000).
b. Position of the Respondent
11. In reply to the claim, the Respondent contested the jurisdiction of FIFA in line with article
13 of the contract. The Respondent stated that “having the parties assigned in the present
case, expressly and by common agreement, the jurisdiction to the an Arbitral Court, a possibility
that both FIFA and CAS have recognized in its decisions, it must be concluded without any doubt
that the filing by Claimant of his complaint before the FIFA Football Tribunal violates what was
established between the parties in Article 12° of the Employment Contract”.
12. The Respondent also indicated that the salaries were paid in full. In this regard, the
Respondent submitted a bank statement payment dated 7 July 2022 in favour of the
Claimant in the amount of AOA 18,700,000.
13. The Respondent further referred to clauses 2 and 4 of the contract alleging that the salaries
indicated in the contract are gross and the Claimant received net salary. Therefore, the
Respondent concluded that it paid the Claimant the net amount of AOA 18,700,000 which
corresponded to the gross amount of AOA 25,365,945.15.
14. As to the signature bonus the Respondent recognized that it still owes the Claimant the
amount claimed by him.
15. The requests for relief of the Respondent were the following:
pg. 5
REF. FPSD-8457
“a) The Football Tribunal must declare itself incompetent to review and prosecute this Player's
complaint for lack of jurisdiction.
If this is not understood and without dispensing with,
b) The Football Tribunal must reject Claimant's application for wages, recognizing only in debt
the amount of 1.600.000,00 AOA relating to the remainder of the signature premium.”
c. Additional comments of the Claimant
16. At the request of the FIFA general secretariat to comment on the allegations of the
Respondent as to the payments, the Claimant indicated that the amount due was not paid
stating that “in view of the Appellant's bank statement produced as an attachment, we should
have expected to see the sum of 18,700,000 AKZ transferred on July 7, 2022; However, it is not
so then and above all that this document retraces daily the transactions carried out on this
account which was supposed to receive the wages claimed; On closer examination, on July 7, 8
and 9, 2022, the Appellant's account statement mentions debits and not credits…”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single 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 2 December
2022 and submitted for decision on 15 March 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.
18. Subsequently, 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 (October 2022 edition), the Dispute Resolution
Chamber is in principle competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
Congo DR and a club from Angola.
19. The Single Judge further noted that the Respondent contested the competence of FIFA’s
deciding bodies in favour of the Arbitration Court in Luanda (hereinafter: the Local
Arbitration Court) in accordance with its clause 13 of the contract. In this respect, the Single
Judge referred to clause 13 of the contract concluded between the parties, according to
which:
pg. 6
REF. FPSD-8457
”1. The parties shall seek the path of dialogue to resolve all disputes arising from the
interpretation and performance of this contract in accordance with the principles of good faith.
If there is no understanding by this means the parties will submit the settlement of disputes to
arbitration in compliance with Article 64 of the FIFA Statutes (Federation Internationale de
Football Association)
2.The procedures established by Law 16/03 of July 25 (Law on Voluntary Arbitration) shall apply
to arbitration, and the Arbitral Tribunal consists of three arbitrators, each of the parties
choosing an arbitrator, who shall choose a third party who presides.
3. Chosen arbitrators must have at least five years of experience of sports and preferably be
licensed in law.
4. The Arbitral Tribunal shall operate in Luanda and its decisions are final and binding to comply,
with the parties renouncing any appeal”.
20. Taking into account all the above, the Single Judge emphasised that in accordance with art.
22 par. 1 lit. b) of the Regulations, FIFA is, in principle, competent to hear an employmentrelated dispute between a club and a player of an international dimension. Nevertheless,
the parties may explicitly opt in writing for such dispute to be decided by an independent
arbitration tribunal that has been established at national level within the framework of the
association and/or a collective bargaining agreement. Any such arbitration clause must be
included either directly in the contract or in a collective bargaining agreement applicable
on the parties. The independent national arbitration tribunal must guarantee fair
proceedings and respect the principle of equal representation of players and clubs. Equally,
the Chamber referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
21. In this context, Single Judge pointed out that it should first analyse whether the
employment contract at the basis of the present dispute contained a clear and exclusive
jurisdiction clause in favour of the Local Arbitration Court.
22. The Single Judge, after analysing the wording of the jurisdiction clause, first wished to clarify
that said clause, although referring to art. 64, in reality likely refers to art. 56 of the FIFA
Statutes, according to which “FIFA recognises the independent Court of Arbitration for Sport
(CAS) with headquarters in Lausanne (Switzerland) to resolve disputes between FIFA,
member associations, confederations, leagues, clubs, players, officials, football agents and
match agents”.
23. In any case, and after duly analysing the contents of clause 13 of the contract, the Single
Judge noted that it generically refers to arbitration and its location in Luanda, but it does
not refer to one specific arbitral tribunal. In this respect, the Single Judge also observed
that the Respondent did not provide any evidence about a specific arbitral tribunal, nor
that this was constituted under the auspices of the Angolan Football Association.
24. As a consequence, the Single Judge was of the opinion that the first pre-requisite for
establishing the competence of a body other than the Football Tribunal was not met, and
pg. 7
REF. FPSD-8457
therefore, without the need to enter the analysis of any further requirement, he
established that the Respondent’s objection to the jurisdiction of FIFA to deal with the
present matter has to be rejected and that the Dispute Resolution Chamber is competent,
on the basis of art. 22 lit. b) of the Regulations, to consider the present matter as to the
substance.
25. 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 (October 2022 edition) and
considering that the present claim was lodged on 2 December 2022, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
26. 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 Transfer Matching System (TMS).
c. Merits of the dispute
27. The competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. In this respect, the Single 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
the assessment of the matter at hand.
i. Main legal discussion and considerations
28. The Single Judge moved to the substance of the matter and took note that the Claimant
lodged the claim at hand against the Respondent seeking payment of his remuneration for
April, May and June 2022 (i.e. AOA 26,965,945.15) and the balance of the signature bonus
(i.e. AOA 1,600,000).
29. On the other hand, the Single Judge was also mindful of the Respondent’s position
according to which with regards to April May and June salaries, it complied with all the
financial duties under the employment contract. The Respondent provided a bank
statement dated 7 July 2022 with a payment of AOA 18,700,000 in favour of the Claimant.
pg. 8
REF. FPSD-8457
30. Furthermore, the Single Judge took note that the Respondent mentioned that the amount
stipulated in the contract are gross, and that it paid the Claimant the net amount of AOA
18,700,000 which corresponded to the gross amount of AOA 25,365,945.15.
31. The Single Judge also observed that the Claimant denies having receive the amount of AOA
18,700,000 and provided as evidence his own banking statements.
32. In this context, the Single Judge acknowledged that his task was to determine, based on
the arguments presented by the parties, whether the Respondent had fulfilled with its
financial obligations.
33. Having the above in mind, the Single Judge recalled the content of article 13, par. 5 of the
Procedural Rules and turned his attention to the documentation on file. In doing so, the
Single Judge acknowledged that following the evidence provided by the Respondent, the
Claimant denied having received that amount.
34. The Single Judge analysed the evidence provided by the Claimant and contrary the
Claimant’s allegation; he noted that a payment of AOA 18,700,000 entered to the Claimant’s
bank account on 7 July 2022 as follows:
35. The Single Judge, therefore, was comforted to conclude on the basis of the presented
evidence that the Respondent paid the amount of AOA 18,700,000.
36. Subsequently, the Single Judge referred to the allegation of the Respondent indicating that
it paid the net amounts. The Single Judge noted that no evidence was provided to establish
the potential amount to be deducted. Thus, the Single Judge concluded that the
Respondent shall pay the claimed amount by the Claimant minus AOA 18,700,000, but
without any further deduction as the Respondent failed to discharge its burden of proof.
37. In view of the foregoing and in line with the general legal principle of pacta sunt servanda,
the Single Judge decided that the Claimant should be entitled to AOA 6,665,945.15 (i.e., AOA
25,365,945.15 minus AOA 18,700,000).
38. As to the signature bonus, the Single Judge took note that the Respondent acknowledged
that this amount is due to the Claimant, therefore, the Single Judge concluded is not
disputed and in accordance with the legal principle of pacta sunt servanda, the Single Judge
decided that the Claimant should be entitled to AOA 1,600,000. Therefore, the Single Judge
concluded that the Claimant is entitled to a total amount of AOA 8,265,945.15 (i.e. AOA
6,665,945.15 plus AOA 1,600,000).
pg. 9
REF. FPSD-8457
39. Furthermore, the Single Judge noted that no interests were requested and in line with the
legal principle ne ultra petita, no interest were awarded.
ii. Art. 12bis of the Regulations
40. 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.
41. 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 form more than 30 days, and
granted the club with 10 days to cure such breach of contract.
42. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. 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 Respondent in accordance with art. 12bis par. 4
lit. a) of the Regulations.
43. In this connection, the Single Judge highlighted 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.
iii. Compliance with monetary decisions
44. 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 his 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.
45. 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.
46. 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
pg. 10
REF. FPSD-8457
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.
47. 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.
48. 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
49. 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.
50. 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.
51. Lastly, t the Single Judge concluded his deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 11
REF. FPSD-8457
IV. Decision of the Dispute Resolution Chamber
1.
The Football Tribunal has jurisdiction to hear the claim of the claimant, Heritier Nzinga
Luvumbu.
2.
The Respondent, CD Primeiro de Agosto, has to pay to the Claimant, the following amount:
-
AOA 8,265,945.15 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 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. 12
REF. FPSD-8457
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
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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
pg. 13