DRC Overdue Payables
Texto da decisão
REF FPSD-6354
Decision of the
Dispute Resolution Chamber
passed on 3 August 2022
regarding an employment-related dispute concerning the player Chidi
Emma Osuchukwu
BY:
Stefano Sartori, Italy
CLAIMANT:
Chidi Emma Osuchukwu, Nigeria
Represented by Aigerim Sabralieva
RESPONDENT:
Ordabasy, Kazakhstan
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REF FPSD-6354
I. Facts of the case
1.
On 8 February 2021, the Nigerian player, Mr Chidi Emma Osuchukwu (hereinafter: the
player or the Claimant), and the Kazakhstani club, Ordabasy (hereinafter: the club or the
Respondent), concluded an employment contract valid as from the date of signature until
30 November 2021 (hereinafter: the contract).
2.
Under Appendix 1 of the contract, the club undertook to pay to the player inter alia a
monthly salary of KZT 9,334,000.
3.
On 30 April 2022, the player and the club entered into a supplementary agreement by
means of which the club agreed to grant the player an unpaid leave from 1 May 2021 until
31 May 2021 (hereinafter: the supplementary agreement). In other words, it was stipulated
that no salary would be due to the player for the month of May 2021.
4.
By correspondence dated 29 April 2022, the player put the club in default of payment of
KZT 74,672,000 (i.e. the salaries from April until November 2021) setting a 10 days’ time
limit in order to remedy the default.
5.
By correspondence dated 29 April 2022, the player – for the second time – put the club in
default of payment of KZT 74,672,000 (i.e. the salaries from April until November 2021)
setting a 10 days’ time limit in order to remedy the default.
6.
On 14 June 2022, the player filed the claim at hand before FIFA. He requested to be
awarded KZT 74,672,000 as the salaries from April until November 2021, plus 5% interest
p.a. as from 1 May 2021 until the effective date of payment.
7.
On 4 July 2022, the club replied to the player’s claim and filed a copy of the supplementary
agreement signed by the parties on 30 April 2021. In this respect, the club clarified that
the player should not be entitled to his salary of May 2021, hence that its debt towards
the player amounted to KZT 65,338,000 (KZT 58,804,200 net).
8.
On 12 July 2022, the player acknowledged having signed the supplementary agreement
and confirmed that the club owed him KZT 58,804,200 net.
9.
On the same date, i.e. 12 July 2022, the club was invited to provide its final comments on
the claim, but failed to do so within the deadline granted by the FIFA general secretariat.
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REF FPSD-6354
II. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
10. 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, he took note that the present matter was presented to FIFA on 14 June 2022
and submitted for decision on 3 August 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.
11. 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., par. 1, b)
of the Regulations on the Status and Transfer of Players (July 2022 edition), the Dispute
Resolution Chamber (DRC) is competent to deal with the matter at stake, which concerns
an employment-related dispute with an international dimension between a Nigerian
player and a Kazakhstani club.
12. 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 (July 2022 edition), and
considering that the present claim was lodged on 14 June 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
13. 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
14. The 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 he will refer only to the facts, arguments, and documentary evidence,
which he considered pertinent for the assessment of the matter at hand.
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i. Main legal discussion and considerations
15. The foregoing having been established, the Single Judge moved to the substance of the
matter, and noted that it remained undisputed between the parties that the player’s
salaries of April, June, July, August, September, October, and November 2021 were
overdue (i.e. KZT 9,334,000 each).
16. As a consequence of the above, the Single Judge decided that the player’s request to this
end is contractually based and should be awarded on the basis of the general legal
principle of pacta sunt servanda.
17. 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 him
interest at the rate of 5% p.a. on the outstanding amounts as from each respective due
date until the date of effective payment.
ii. Article 12bis of the FIFA RSTP
18. 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.
19. 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.
20. 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.
21. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she 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.
22. 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.
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REF FPSD-6354
iii. Compliance with monetary decisions
23. 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.
24. 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.
25. 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
26. 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.
27. 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
28. 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.
29. 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.
30. Lastly, the Single Judge rejected any other requests for relief made by any of the parties.
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REF FPSD-6354
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Chidi Emma Osuchukwu, is partially accepted.
2.
The Respondent, Ordabasy, has to pay to the Claimant, the following amount(s):
a. KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 May 2021
until the date of effective payment;
b. KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2021
until the date of effective payment;
c. KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 August
2021 until the date of effective payment;
d. KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 September
2021 until the date of effective payment;
e. KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 October
2021 until the date of effective payment;
f.
KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 November
2021 until the date of effective payment; and
g. KZT 9,334,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2021 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.
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REF FPSD-6354
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
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REF FPSD-6354
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).
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
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