DRC Overdue Payables
Texto da decisão
REF FPSD-4994
Decision of the
Dispute Resolution Chamber
passed on 31 March 2022
regarding an employment-related dispute concerning the player Filip
Pankarican
BY:
DIALLO Philippe (France)
CLAIMANT:
Filip Pankarican, Serbia
Represented by Mirko Poledica
RESPONDENT:
Gudja United, Malta
Represented by Gordon Grech
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REF FPSD-4994
I.
Facts of the case
1.
On 26 January 2021, the Serbian player Filip Pankarican (hereinafter: the Claimant) and the
Maltese club Gudja United (hereinafter: the Respondent) concluded an employment contract
(hereinafter: the Contract) valid until 31 December 2021.
2.
According to the Contract, “In remuneration for his services the club shall pay the player
monthly salary of 4,100 euro gross at the end of each month accept for the months of may
and June 2021 for these two months the player shall be paid 50% of his normal salary. Such
remuneration shall be paid by means of cheque”.
3.
On 21 January 2022 the Claimant sent the default notice to the Respondent requesting the
amount of EUR 23,600 and gave a deadline of 10 days to pay the debt to no avail.
II. Proceedings before FIFA
4.
On 1 February 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
5.
According to the Claimant, he had failed to receive his remuneration for several months and
had put the club in default.
6.
The Claimant filed the following requests for relief:
“We kindly request and claim in the following:
To order Gudja United FC to pay to the football player Mr Bojan Filip Pankarican the amounts
as follows:
The part of the salary for July 2021 according to the Contract of Professional Player in the
amount of EUR 3,100 which was supposed to be paid until 1 August 2021, with 5% interest
of 1 August 2021.
The salary for August 2021 according to the Contract of Professional Player in the amount of
EUR 4,100 which was supposed to be paid until 1 September 2021, with 5% interest of 1
September 2021.
The salary for September 2021 according to the Contract of Professional Player in the amount
of EUR 4,100 which was supposed to be paid until 1 October 2021, with 5% interest of 1
October 2021.
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The salary for October 2021 according to the Contract of Professional Player in the amount
of EUR 4,100 which was supposed to be paid until 1 November 2021, with 5% interest of 1
November 2021.
The salary for November 2021 according to the Contract of Professional Player in the amount
of EUR 4,100 which was supposed to be paid until 1 December 2021, with 5% interest of 1
December 2021.
The salary for December 2021 according to the Contract of Professional Player in the amount
of EUR 4,100 which was supposed to be paid until 1 January 2022, with 5% interest of 1
January 2022.
TOTAL AMOUNT OF EUR 23,600”
b. Position of the Respondent
7.
The Respondent replied on the following terms.
8.
The Respondent submits that it “never received any notification as purported in the statement
of claim, and this is further substantiated by the fact that the email address of the club is
[email protected];”
9.
The Respondent states that the amount requested “is incorrect since the agreed terms by and
between the parties were that the amount shall be GROSS and thus tax and national
insurance had to be deducted from the amount”.
10. Based on the above, the Respondent deems that the amount of EUR 1,650 is to be deducted
by way of social security contributions for the period. Additionally, the amount of EUR
2,762.46 is to be deducted by way of Income Tax.
11. The Respondent further adduces that it paid EUR 11,000 to the Claimant, either through
bank cheques and/or cash payments.
12. The Respondent submits that the parties agreed that “the EUR 8,187.54 had to be paid in
two instalments, i.e. Euro 5,000 payable by not later than 29/12/2021 and a further payment
in full and final settlement of Euro 5,300 as agreed with the player via wats app messages
dated 31/12/2021 (attached to this document as Doc.5a and 5b) to be payable by not later
than 28/02/2022”.
13. For the above, the Respondent “does not contest that EUR 5,300 are due, and it shall
immediately take the necessary actions to settle this amount in full and final settlement”.
c. Claimant’s comments
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14. The Claimant was invited to comment on the alleged payments made by the Respondent.
15. The Claimant stated that the Respondent was obliged to pay to the Claimant the total amount
of EUR 41,000
16. The Claimant submitted that the Respondent paid “total EUR 17,400 including the payments
which the Respondent submitted in DOC4b, DOC4c, DOC4d, DOC4e of the response on the
Claimant’s claim.”
17. The Claimant states that he never received the amount of EUR 2,750 as submitted by the
Respondent and therefore he never signed the document provided.
18. Moreover, the Claimant underlines that he has never received the amount of EUR 5,000 from
Mr Stuart Abdila and it is a false statement without any evidence and without the Claimant’s
written confirmation.
19. Lastly, the Claimant reiterates that “there was no agreement between the parties after the
contract expired.”
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, 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 01 February 2022 and submitted for
decision on 31 March 2022. 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.
21. Subsequently, the Single Judge referred to art. 2 par. 1 and art. 24 par. 1 lit. a) 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 (March 2022 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Serbian player and a Maltese club.
22. 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 01 February 2022, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
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b. Burden of proof
23. 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.
c. Merits of the dispute
24. 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 it 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
25. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the claim partially uncontested although the
Respondent alleges to have paid certain amounts.
26. In this context, the Single Judge acknowledged that his task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent.
27. 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.
28. Nonetheless, the Single Judge noted that the evidence provided by the Respondent, which is
contested by the Claimant and remains unsigned, does not prove beyond doubt the payment
of the amounts claimed as outstanding by the Claimant. Furthermore, no reasonable
justification was presented by the Respondent for not having complied with the terms of the
contract.
29. In particular, the Single Judge noted that according to the Contract, the Respondent was
bound to pay the total amount of EUR 41,000 for the whole duration of the Contract.
Furthermore, he observed that the Respondent has solely provided clear and undisputed
evidence of having paid the amount of EUR 17,400.
30. In view of the foregoing and bearing in mind the basic legal principle of pact sunt servanda,
which in essence means that agreements must be respected by the parties in good faith, the
Respondent is held liable to pay the Claimant the outstanding amounts deriving from the
contract concluded between the parties, namely EUR 23,600.
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31. Furthermore, taking into consideration the Claimant’s request as well as the constant practice
of the Football Tribunal in this regard, the Single Judge decided to award the Claimant interest
on said amount at the rate of 5% p.a. as of the date each payment fell due until the date of
effective payment.
ii. Consequences under art. 12bis
32. 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.
33. 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.
34. Accordingly, the Single Judge 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 was met in the case at hand.
35. 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, the Single Judge
decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
36. 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
37. 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.
38. 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.
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39. 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 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.
40. 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.
41. 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
42. 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.
43. 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.
44. 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, Filip Pankarican, is accepted.
2.
The Respondent, Gudja United, has to pay to the Claimant, the following amount(s):
- EUR 23,600 gross as outstanding remuneration plus 5% interest p.a. as follows:
On EUR 3,100 from 1 August 2021 until the date of effective payment;
On EUR 4,100 from 1 September 2021 until the date of effective payment;
On EUR 4,100 from 1 October 2021 until the date of effective payment;
On EUR 4,100 from 1 November 2021 until the date of effective payment;
On EUR 4,100 from 1 December 2021 until the date of effective payment;
On EUR 4,100 from 1 January 2022 until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in
the enclosed Bank Account Registration Form.
5.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (March 2022
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.
2.
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.
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.
6.
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.
7.
This decision is rendered without costs.
8.
A warning is imposed on the Respondent.
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).
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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