DRC Overdue Payables
Texto da decisão
REF FPSD-3526
Decision of the
Dispute Resolution Chamber
passed on 24 November 2021
regarding an employment-related dispute concerning the player Eric Owusu
BY:
Jérôme Perlemuter, France
CLAIMANT:
Eric Owusu, Ghana
Represented by Berlin Sports Law
RESPONDENT:
Buildcon FC, Zambia
Represented by Yakub Kizilkaya
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REF FPSD-3526
I.
Facts of the case
1.
On 11 March 2019, the player from Ghana, Mr Eric Owusu (hereinafter: the player or the
Claimant), and the club from Zambia, Buildcon FC (hereinafter: the club or the Respondent)
concluded an employment contract valid as from the date of signature until 30 March 2021
(hereinafter: the employment contract).
2.
Pursuant to clause 2.1 of the employment contract, the club undertook to pay the player a
monthly salary of USD 2,000 net.
3.
On the same date, i.e. 11 March 2019, the same parties also concluded an agreement letter
according to which the player would be entitled to USD 10,000 as sign-on fee, payable as
follows:
a. USD 5,000 within 7 working days after the receipt of the International Transfer
Certificate (ITC) from FIFA; and
b. USD 5,000 “after 30 days”.
4.
In accordance with the information available in the Transfer Match System (TMS), the player’s
ITC was delivered on 18 March 2019.
5.
On 1 February 2020, the player lodged a first claim against the club before the Dispute
Resolution Chamber (DRC) requesting payment of his outstanding salaries, plus the sign-on
fee (case ref. 19-02105/sil). Subsequently, on 17 April 2020, the DRC issued its decision and
the club was order to pay USD 16,000 to the player, corresponding to the salaries from
September to November 2019 and the sign-on fee.
6.
On 18 August 2021, the player put the club in default and granted it with a 10 days’ deadline
in order to proceed the payment of USD 36,600, corresponding to his remaining salaries.
II. Proceedings before FIFA
7.
On 2 September 2021, the player filed the claim at hand before FIFA. A brief summary of the
position of the parties is detailed in continuation.
a. Claim of the player
8.
In his claim, the player referred to the content of article 12bis of the FIFA Regulations on the
Status and Transfer of Players (RSTP) and informed that the club was in breach of the
employment contract.
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9.
Therefore, he requested to be awarded his outstanding remuneration plus 5% interest p.a.
as from the due dates, as follows:
a. USD 2,000 as the salary of December 2019;
b. USD 16,000 as the salaries from February to September 2020;
c. USD 2,000 as the salary of December 2020; and
d. USD 600 as “additional outstanding for the salaries in 2021”.
b. Reply of the club
10. In accordance with the club, the following payments were made to the player and should be
considered for the sake of calculation:
a. USD 2,000 on 7 April 2020;
b. USD 2,000 on 11 May 2020;
c. ZMW 25,000 (approx. USD 1,500) in December 2020;
d. ZMW 60,000 (approx. USD 3,582) on 9 April 2021;
e. USD 2,850 on 12 April 2021; and
f. USD 10,000 on 8 September 2021.
11. Therefore, the club concluded that the outstanding remuneration due to the player amounts
to USD 4,068.
c. Rejoinder of the player
12. In his rejoinder, the player informed, inter alia, that:
a. the payments allegedly made to the player on 7 April, 11 May and December 2020
were not delivered and shall be disregarded. In particular, the player claimed that
the lists provided by the club were forged;
b. the payments of ZMW 60,000 made on 9 April 2021 corresponds to USD 2,708.25
instead of USD 3,582 as alleged by the club. Therefore, the player confirmed that
he received USD 5,558.25 in April 2021, resulting in an additional outstanding
amount of USD 441,75 (instead of USD 600) as referred to in the statement of the
claim; and
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c. the payment of USD 10,000 was indeed received on 8 September 2021, but
corresponded to a partial payment under the decision of case ref. 19-02105/sil.
13. In light of the above, the player amended his requests for relief and claimed to be awarded
USD 20,441.75 plus 5% interest p.a. as from the due dates.
d. Final comments of the club
14. In its final comments, the club first of all maintained that the USD 10,000 paid to the player
on 8 September 2021 should be considered for the sake of calculation.
15. Subsequently, the club provided new proofs of payment, and mentioned that the following
amounts were also delivered:
a. ZMW 25,000 on 6 February 2021;
b. ZMW 25,000 on 18 March 2021; and
c. ZMW 25,000 on 20 April 2021.
16. In attention to the above, the club explained that all amounts due to the player had already
been paid and held that the claim should be entirely rejected.
e. Additional comments of the player
17. After being requested to comment the proof of payments provided by the club with its latest
correspondence, the player reiterated his position as to the payment of USD 10,000.
18. In addition, he confirmed receipt of the ZMW 75,000 indicated by the club. Consequently,
the player concluded that he should be awarded USD 16,311.83, plus 5% p.a. interest as of
the due dates.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
19. 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 2 September 2021
and submitted for decision on 24 November 2021. Taking into account the wording of art.
34 of the October 2021 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.
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20. 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 (August 2021 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 player from Ghana and a club from Zambia.
21. 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 (August 2021 edition), and
considering that the present claim was lodged on 2 September 2021, the aforementioned
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
22. 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
23. His 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.
i. Main legal discussion and considerations
24. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains a claim for outstanding remuneration only.
25. In particular, the Single Judge highlighted the player’s request for the payment of his salaries
from December 2019, February to September 2020, December 2020 and part of 2021. He
did not fail to notice either that the club, on the other hand, maintained that the player’s
remuneration was delivered in full.
26. In this context, the Single Judge deemed that it was his task to rule on the following:
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a. Should the payments allegedly made by the club on 7 April, 11 May and December
2020 be considered as part of the player’s remuneration and, if so, added to the
calculation?
b. Should the payments allegedly made by the club on 8 September 2021 be
considered as part of the player’s remuneration and, if so, added to the calculation?
c. What amounts are indeed due to the player and what are the consequences that
follow?
27. In light of the above, the Single Judge turned his attention to the documentation on file and
proceeded to examine each matter, as follows.
a. Should the payments allegedly made by the club on 7 April, 11 May and
December 2020 be considered as part of the player’s remuneration and, if
so, added to the calculation?
28. Firstly, the Single Judge noted that the player contested the signature of the lists dated 7 April
and 11 May and December 2020.
29. In light of the above, the Single Judge carefully analysed the documentation brought forward
by the club and noted that the signatures added to the evidence filed by the club were quite
different. Furthermore, the Single Judge observed that said signatures were also different
from the player’s consent added to the employment contract and to the official
documentation of these proceedings. Finally, the Single Judge was observant of the fact that
in spite of having the opportunity to do so, the club did not advance any other evidence in
order to corroborate its allegations.
30. Therefore, the Single Judge was of the opinion that the club could not establish to a
comfortable satisfaction degree that the payments were indeed delivered to the player.
Therefore, the Single Judge decided that said amounts should not be considered as part of
the player’s remuneration nor added to the calculation.
31. If follows that the club’s allegations in this respect could not be upheld.
b. Should the payments allegedly made by the club on 8 September 2021 be
considered as part of the player’s remuneration and, if so, added to the
calculation?
32. Subsequently, the Single Judge went on analysing the club’s position as to the payment made
to the player on 8 September 2021. In this regard, the Single Judge took due consideration
of the player’s argumentation regarding case ref. 19-02105/sil, as well as of the
documentation advanced in support of his allegations.
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33. In this respect, the Single Judge observed that the proof of payment filed by the club expressly
reads that the payment was related to the previous claim (ref. 19-02105/sil). Moreover, the
Single Judge considered that the timeline of said payment also corroborated the player’s
position that the payment was made as regards to the other case.
34. Therefore, the Single Judge once again concluded that the club’s position in this connection
should be set aside, hence that the amount should not be considered in the calculation.
c. What amounts are indeed due to the player and what are the consequences
that follow?
35. The foregoing having been established, the Single Judge concluded the club was contractually
obliged to pay the player the following amounts:
a. USD 2,000 as the salary of December 2019;
b. USD 16,000 as the salaries from February to September 2020 (i.e. EUR 2,000 each);
c. USD 2,000 as the salary of December 2020;
d. USD 600 as the balance of 2021.
36. Notwithstanding the above, the Single Judge pointed out that USD 6,124.04 should be
deducted from the oldest outstanding amounts (i.e. December 2019, February, March and
part of April 2021), corresponding to the payments made by the club and acknowledged by
the player. The amounts were converted to US Dollars in accordance with the exchange rate
of the date of payment, as follows:
a. ZMW 25,000 (approx.. USD 1,161.36) on 6 February 2021;
b. ZMW 25,000 (approx.. USD 1,133.13) on 18 March 2021;
c. ZMW 60,000 (approx.. USD 2,705.85) on 9 April 2021;
d. ZMW 25,000 (approx.. USD 1,273.73) on 20 April 2021.
37. In addition, taking into consideration the player’s request as well as the constant practice of
the Football Tribunal in this regard, the Single Judge decided to award the player interest at
the rate of 5% p.a. on the outstanding amounts as from the date in which each instalment
fell due until the date of effective payment.
ii. Art. 12bis of the Regulations
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38. 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.
39. 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 more than 30 days before, and granted the club
a 10-day deadline to cure such breach of contract.
40. Accordingly, the Single Judge confirmed that the club had delayed a due payment without a
prima facia contractual basis. It followed that the criteria enshrined in art. 12bis of the
Regulations was met in the case at hand.
41. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. On account of the above and bearing in
mind that this is the second offense by the club within the last two years, the Single Judge
decided to impose a reprimand on the club in accordance with art. 12bis par. 4 lit. b) of the
Regulations.
42. 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
43. 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.
44. 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.
45. 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.
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46. 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.
47. 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
48. Lastly, 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.
49. 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. Thus, the player’s request on this matter could not be upheld.
50. Lastly, the Single Judge concluded his 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, Eric Owusu, is partially accepted.
2.
The Respondent, Buildcon FC, has to pay to the Claimant, the following amount(s):
- USD 1,875.93 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until the
date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until the
date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until
the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 September 2020
until the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 October 2020 until
the date of effective payment;
- USD 2,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2021 until
the date of effective payment; and
- USD 600 as outstanding remuneration plus 5% interest p.a. as from 31 March 2021 until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
A reprimand 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 (August 2021
edition), 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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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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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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