Labour Disputes
Texto da decisão
REF. FPSD-9559
Decision of the
Dispute Resolution Chamber
passed on 26 April 2023
regarding an employment-related dispute concerning
the player Amos Nondi Obiero
BY:
Ms Dana Al-Noaimi (Qatar)
CLAIMANT:
Amos Nondi Obiero, Kenya
RESPONDENT:
Football Club Dila Gori, Georgia
pg. 2
REF. FPSD-9559
I. Facts of the case
1.
On 24 January 2021, the Kenyan player Amos Nondi Obiero (hereinafter the Claimant or the
player) and the Georgian club FC Dila Gori (hereinafter the Respondent or the club)
concluded an Employment Agreement (hereinafter the Employment Agreement) valid as
from 24 January 2021 until 15 December 2022.
2.
In Article 1.2 of the Employment Agreement, the Claimant and the Respondent (jointly
referred to as the parties) agreed, inter alia, upon the following financial conditions:
“The salary of the Player for the year 2021 shall be 2000 USD NET and he will receive
9,5 monthly salaries in 2021. The salary of the Player for the year 2022 shall be 2600 USD
NET. The player will receive 10 monthly salaries in 2022 year. The calculation of the salaries
will start after the date when the player undergo medical exam in Georgia.” (emphasis
added)
“Each salary shall be paid to the Player until the 20th day of the month, following the month
for which the payment is made.”
3.
In the same Article, the parties agreed upon payment of bonuses, which was payable in
Georgian Lari (GEL):
4.
Article 1.3.1 of the Employment Agreement established that “During the Term of the
Agreement the Team will take care of the Player’s housing arrangements”.
5.
Article 3 of the Employment Agreement established that “the Player represents and
acknowledges that he is aware that with respect to performing his role in the Team he is subject
to disciplinary regime and fines as applicable in the Team pursuant to the internal disciplinary
regulations of the Team. As shall be in force during the Term of the Agreement. (…)”
pg. 3
REF. FPSD-9559
6.
On 7 February 2023, the Claimant sent a default notice to the Respondent, requesting the
amount of USD 3,900, corresponding to the salaries of November and December 2022
within the next 10 days, however, to no avail.
7.
On 16 March 2023, the “Georgian Football Development Fund” confirmed in a letter to the
Respondent that there would be no funding for bonuses.
8.
There are two undated notices on file, which read as follows:
“With this letter, we would like inform you that according to article 3.1. of your contract
with the club: for
violation of discipline the club is allowed to impose a fine.
On 28.06.2022 you failed to come on teams training in time and delayed by more than
20 minutes, so the club will give you a fine in amount of 200 GEL which will be deducted
from your salary.”
“With this letter, we would like inform you that according to article 3.1. of your contract
with the club: for
violation of discipline the club is allowed to impose a fine.
On 05.07.2022 you missed very important training before UEFA conference league match
against FC KUPS, so the club will give you a fine in amount of 3000 GEL which will be
deducted from your salary.”
II. Proceedings before FIFA
9.
On 9 March 2023, 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 requests for relief of the Claimant were the following:
“AGREE TO DECLARE the complaint admissible and well-founded;
AGREE TO CONDEMN FC DILA GORI to pay back pay as follows :
Remaining salary of 3.900 USD net to be increased by interest of 5% per annum from 1st
January 2023 until the effective payment date.
AGREE TO REJECT any further claim by FC DILA GORI.
TO LEAVE to the sovereign appreciation of the Court of Appeal the application of articles
24 bis of the RSTP FIFA 2022.”
11. The Claimant alleged that the claimed amount corresponds to the salaries of
November 2022 (USD 2,600) and December 2022 (USD 1,300) and based his claim on the
legal principle pacta sunt servanda.
pg. 4
REF. FPSD-9559
b. Position of the Respondent
12. In its reply to the claim, the Respondent argued “that it has fulfilled all its obligations towards
the player and the player has no right to demand any compensation from the club.”
13. The Respondent asserted that the Claimant was entitled to GEL 89,347.05 in the relevant
season 2022. In this respect, the Respondent provided for the following break-down:
−
−
−
“10 months’ salary totaling 26000 USD. According to the contract, the salaries were
calculated according to the official exchange rate on the 10th day of each following
month, which in total amounts to 75732.28 GEL during the entire year 2022.”
“27 lineup bonuses in 2022, 150 USD for every match he has started in first eleven, which
were calculated on the 10th day of each month according to the official exchange rate
for the bonuses obtained in the previous month. In total, the acceptable lineup bonus in
2022 amounts to 11841.77 GEL.”
“(…) the players were allowed to receive the winning bonus without any reason for last 5
matches in case of winning in the last 5 matches with an additional agreement.
Accordingly, Amos Nondi Obiero had 1800 GEL to collect based on winning 4 matches in
the last 5 matches.”
14. The Respondent then argued that the Claimant received GEL 86,465.56, i.e. a difference of
GEL 2,908.49 remains “outstanding”.
15. In this respect, the Respondent argued that it paid the Claimant’s bills in the amount of
GEL 1,825.78. Furthermore, the Respondent pointed out that due to disciplinary violations,
it further deducted the amount of GEL 1,200, despite being entitled to deduct GEL 3,200.
16. In view of the above, the Respondent was of the opinion that no amounts remained
outstanding.
c. Comments of the Claimant
17. The Claimant was requested to comment on the alleged payments performed by the
Respondent.
18. In this respect, the Claimant asserted that “the monthly salary stipulated in the article 1.2.1 is
2.600 USD Net. As the contract was expiring on 15/12/2022, the remuneration was supposed to
be 29.900 USD which is equivalent to 85.000 GEL (according the medium 2022 rate)” and
“4.050 USD should have been paid to me according the article 1.2.2 of my contract.”
19. What is more, the player argued that he “should have received 2.400 USD (150 USD x 16
victory, (…) for the 2022 season. Dila Gori is accepting the fact that they gave only 1.800 GEL
(600 USD) instead of the 6.180 GEL (2.400USD) that they should normally paid me for the season.
So, 1.800 USD is still missing.”
pg. 5
REF. FPSD-9559
20. Pointing out to Article 1.3.1 of the Employment Agreement, the player argued that the club
was responsible for the housing arrangements and, furthermore, the club failed to prove
that the alleged expenses were “made in relation with the apartment that I was occupying.”
21. Finally, the player contested that any disciplinary violations occurred.
22. The Claimant amended his claim as follows:
“In view of the above, there remains a backlog of remuneration amounting 3.900 USD net to
be uncreased by interest of 5% per annum from 1st January 2023.
And also, following the proofs that Dila Gori has furnished, a backlog of bonus amounting
1.800 USD net.
I reject any further claim by Dila Gori.
I agree to condemn FC Dila Gori, in the view of the additional information, to pay me,back a
total outstanding amount of 5.700 USD net plus 5% interest from 1st January 2023.”
d. Comments of the Respondent
23. The Claimant was requested to comment on the alleged payments performed by the
Respondent. The Respondent was requested to comment on the amended claim of the
player.
24. In this respect, the Respondent argued:
−
−
−
−
−
−
the player's salary in 2022 should have been USD 26,000, divided into 10 instalments
(“75732.28 GEL”);
as to the line-up bonuses, Respondent argued that it had the right to proportionally
reduce the bonuses, yet it decided to still pay those. Considering the allegation in
the present claim, the club requested to “exclude the bonus of being in the starting
line-up in the amount of 4050 US dollars, which is 11841.77 GEL, from the
remuneration”;
the club further argued that based on Appendix 3 – Agreement on bonuses “is
completely clear and indisputable that the player should not have received even 1800
GEL as a winning bonus in 2022”;
concerning the accommodation costs of the player, the club argued that it is “not
written anywhere that the club was obliged to pay his utility bills” and insisted on
GEL 1,825.78;
finally, the club argued that “the player is lying when he says that he has not received
a notification about his penalty. He was informed about this via WhatsApp and replied
that he was informed about the fines”
The club argued that in 2022 the player received the amount of
“86,465.56+14,283.43= GEL 100,748.99”
− Salaries: GEL 75,732.28
− Bonus Article 1.2.2. of the Employment Agreement: N/A
− Winning bonuses: N/A, yet GEL 1,800 received
pg. 6
REF. FPSD-9559
−
−
−
−
−
Utility bills: GEL 1,825.78 shall be deducted
Fines: GEL 3,200 shall be deducted
The player should receive 75732.28-1825.78-3200= GEL 70,706.50
“The salary, winning bonuses and lineup bonuses paid by the club to the player
in 2022, amounted to 86,465.56 GEL (see Appendix 7 - payments to the player),
which is 15,759.06 GEL more than the salary receivable on the basis of his
contract and agreement. which he received because our club always acts in
the best interests of the player and because of increasing his motivation, we
still gave the amounts that was not due to the player according to the
contract.”
“Additionally, to Salaries, winning bonuses and lineup bonuses the player has
received in 2022,UEFA bonuses for 2020 and 2021 in amount of 14283.43 GEL”
25. Finally, the club argued that “despite the fact that the club paid the player a much large amount
than he was actually entitled to in 2022, the club respects a long-term relationship between the
player and the club and does not ask him to return the said amount.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
26. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as the Single Judge) analysed whether she was competent to deal with the case at hand.
In this respect, it took note that the present matter was presented to FIFA on 9 March 2023
and submitted for decision on 26 April 2023. 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.
27. 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 player from Kenya and a club from
Georgia.
28. 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 2023 edition),
and considering that the present claim was lodged on 9 March 2023, the October 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
pg. 7
REF. FPSD-9559
b. Burden of proof
29. 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
30. 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
31. 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
overdue payables for the salaries of November 2022 (USD 2,600) and December 2022
(USD 1,300). What is more, the Single Judge noted that the player amended his claim and
requested an additional amount of USD 1,800 for bonuses, whereas the club disputed the
claim.
32. In this context, the Single Judge acknowledged that it her task was to determine, based on
the evidence presented by the parties, whether the claimed amounts had in fact remained
unpaid by the Respondent and, if so, whether the latter had a valid justification for not
having complied with its financial obligations.
33. The Single Judge first noted that in the case at hand the Respondent bore the burden of
proving that it indeed complied with the financial terms of the contract concluded between
the parties.
34. At this point, the Single Judge pointed out that the submissions of the parties were
somewhat unclear, and she moved to the assessment of the information on file.
35. First of all, the Single Judge recalled Article 1.2 of the Employment Agreement: “The salary
of the Player for the year 2022 shall be 2600 USD NET. The player will receive 10 monthly salaries
in 2022 year.”
pg. 8
REF. FPSD-9559
36. Based on the above, the Single Judge concluded that the total salaries due amounted to
USD 26,000 (approx. GEL 68,330.9 as per conversion on 15 December 2022).
37. In this respect, the Single Judge recalled that the Claimant argued that USD 29,900 should
have been paid, i.e. adding an additional 1,5 months (USD 3,900) as outstanding
remuneration. Based on the contractual provision, the Single Judge decided that the claim
for USD 3,900 should be rejected as the said article is clear in stipulating that USD 26,000
will be paid out for the year 2022.
38. The Single Judge then turned her attention the possible claim for bonuses. In this respect,
the Single Judge noted that the player provided evidence that he was playing in 16 matches,
in which the club won. In this respect, the Single Judge observed that in 13 of those games,
the player was playing more than 45 minutes:
−
−
−
BONUS Article 1.2.2. of the Employment Agreement: USD 150 x 13 = USD 1,950
(approx. GEL 5,124.81 as per conversion on 15 December 2022)
BONUS Article 1.2.3. of the Employment Agreement: (GEL 600 x 9) plus (GEL 300 x
2) plus (GEL 1,200 x 2) plus (GEL 600 x 2) = GEL 9,600
TOTAL: GEL 14,724.81
39. As to the alleged reduction of Claimant’s salaries as per Article 1.2.4. of the Employment
Agreement, the Single Judge decided that this argumentation of the Respondent shall be
disregarded as such penalty would have only applied retroactively.
40. Based on the above and the available evidence on file, the Single Judge established that the
total amount due to the player amounted to GEL 83,055.71 (GEL 68,330.9 plus
GEL 14,724.81).
41. Furthermore, in order to establish if the club had outstanding amounts towards the player,
the Single Judge assessed the evidence provided by the Respondent. First of all, she looked
at the proofs of payments, which appear to be sent to the same bank account
corresponding with the FIFA Bank Account Registration Form:
1
Date of receipt
31/01/2022
Amount
GEL 3,000
2
10/03/2022
GEL 5,799.94
3
19/03/2022
GEL 600
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
pg. 9
REF. FPSD-9559
4
19/03/2022
GEL 600
5
02/04/2022
GEL 575.67
6
06/04/2022
GEL 586.90
7
12/04/2022
GEL 9,380
8
22/04/2022
GEL 1,146.55
9
22/04/2022
GEL 586.91
10
12/05/2022
GEL 7,883.46
11
12/05/2022
GEL 2,728.89
12
27/05/2022
GEL 573.82
13
12/06/2022
GEL 1,818.42
14
12/06/2022
GEL 7,718.62
15
21/06/2022
GEL 600
16
21/06/2022
GEL 586.91
17
14/07/2022
GEL 429.65
18
14/07/2022
GEL 7,447.18
19
15/08/2022
GEL 7,043.14
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
Unclear as to what this
payment corresponds
to
pg. 10
REF. FPSD-9559
20
21
22
23
24
25
26
27
28
29
16/09/2022
GEL 1,695.66
Unclear as to what this
payment corresponds
to
16/09/2022
GEL 7,347.86
Unclear as to what this
payment corresponds
to
08/10/2022
GEL 600
Unclear as to what this
payment corresponds
to
12/10/2022
GEL 1,259.87
Unclear as to what this
payment corresponds
to
12/10/2022
GEL 7,279.22
Unclear as to what this
payment corresponds
to
11/11/2022
GEL 6,087.86
Unclear as to what this
payment corresponds
to
12/11/2022
GEL 1,635.66
Unclear as to what this
payment corresponds
to
22/11/2022
GEL 1,453.37
Unclear as to what this
payment corresponds
to
11/03/2022
GEL 6,948.38
Unclear as to what this
payment corresponds
to
23/10/2022
GEL 7,335.05
Unclear as to what this
payment corresponds
to
TOTAL
GEL 100,751.99
USD 38,543.3
Payments corresponding to the alleged accommodation costs
02/01/2022
GEL 45
Different bank account
04/01/2022
GEL 7.35
Different bank account
29/01/2022
GEL 20.70
Different bank account
02/02/2022
GEL 45
Different bank account
03/02/2022
GEL 4.79
Different bank account
04/02/2022
GEL 1
Different bank account
26/02/2022
GEL 93.15
Different bank account
02/03/2022
GEL 9.91
Different bank account
02/03/2022
GEL 45
Different bank account
03/03/2022
GEL 2
Different bank account
29/03/2022
GEL 257.60
Different bank account
02/04/2022
GEL 18.54
Different bank account
02/04/2022
GEL 45
Different bank account
06/04/2022
GEL 1.5
Different bank account
pg. 11
REF. FPSD-9559
30/04/2022
01/05/2022
02/05/2022
05/05/2022
29/05/2022
02/06/2022
02/06/2022
04/06/2022
02/07/2022
02/07/2022
02/07/2022
06/07/2022
29/07/2022
02/08/2022
02/08/2022
04/08/2022
28/08/2022
02/09/2022
02/09/2022
06/09/2022
28/09/2022
02/10/2022
04/10/2022
06/10/2022
29/10/2022
02/11/2022
02/11/2022
04/11/2022
28/11/2022
02/12/2022
03/12/2022
06/12/2022
29/12/2022
GEL 169.05
GEL 15.02
GEL 45
GEL 0.5
GEL 33.35
GEL 13.10
GEL 44.90
GEL 2.50
GEL 34.50
GEL 45
GEL 16.30
GEL 1
GEL 30.36
GEL 45
GEL 18.86
GEL 1
GEL 40.2
GEL 48.03
GEL 42.19
GEL 3.99
GEL 5.52
GEL 51
GEL 37.07
GEL 3.49
GEL 31.74
GEL 52.42
GEL 29.08
GEL 2.99
GEL 175.26
GEL 24.61
GEL 53
GEL 2.99
GEL 110.40
TOTAL
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
Different bank account
GEL 1,825.96
USD 698.532
42. In view of the above, the Single Judge concluded that the Claimant effectively received the
amount of GEL 100,751.99, even though being entitled to GEL 83,055.71. Consequently, the
Single Judge decided to reject the claim of the Claimant.
43. Finally, for the sake of completeness, the Single Judged wished to add that she noted the
argumentation of the club invoking wrongdoing of the Claimant, yet that the Respondent
failed to provide any evidence as to (i) the misbehaviour of the player, nor to the (ii) the
disciplinary process allegedly conducted in accordance with the Disciplinary Regulations.
Therefore, the Single Judge clarified that the fines imposed by the club on the player should
be rendered null and void.
pg. 12
REF. FPSD-9559
44. Equally, the Single Judge rejected the arguments of the Respondent regarding the alleged
deductions concerning accommodation. In this respect, the Single Judge recalled the
Article 1.3.1 of the Employment Agreement establishing that “During the Term of the
Agreement the Team will take care of the Player’s housing arrangements”. Consequently, the
Single Judge concluded that no deduction shall be applied as per the contract. What is
more, the Single Judge pointed out that, in any event, the Respondent failed to provide
evidence as to what these payments in the table above correspond to.
d. Costs
45. 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.
46. 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.
47. Lastly, the Single Judge concluded her deliberations by rejecting any other requests for
relief made by any of the parties.
pg. 13
REF. FPSD-9559
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Amos Nondi Obiero, is rejected.
2.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-9559
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. 15