DRC Overdue Payables
Texto da decisão
REF FPSD-7357
Decision of the
Dispute Resolution Chamber
passed on 22 November 2022
regarding an employment-related dispute concerning the player Moussa
Sanoh
BY:
Jon Newman (USA)
CLAIMANT:
Moussa Sanoh, Netherlands
Represented by Sensato Sports Law
RESPONDENT:
Clubul Sportiv Mioveni, Romania
Represented by Anca Mituica
REF FPSD-7357
I.
Facts of the case
1.
On 4 August 2021, the Dutch player, Moussa Sanoh (hereinafter: Claimant or player) and
the Romanian club, Clubul Sportiv Mioveni (hereinafter: Respondent or club) concluded an
employment contract (hereinafter: contract) valid as from 4 August 2021 until 15 June 2022.
2.
According to the contract, the club undertook to pay the player the following remuneration:
“4.1. Monthly pay:
In exchange for the football activities performed by the Player, as they are mentioned in this
Agreement, the Club shall pay the Player the following amounts:
• For the period of time during 04.08.2021 - 31.08.2021, the player will pe paid amount 5.000
euro net (24.650 RON). For the period of time during 1.09.2021 - 15.06.2022, the player will
be paid the amount 3.000 euro/month, (14.800RON) calculated according to the exchange
rate communicated by BNR (National Bank of Romania) for the payment date.
• The Club will provide to the Player with apartment (300 euro, means 1500 RON) and food,
also two plane tickets
4.2. Bonuses:
4.2.2 The Club will pay the sum of 5.000 euro to the Player, in case the team will stay in Liga 1,
at the final of the 2021-2022 season, depending on the minutes played. For each goal scored,
the player will be paid with 300 euro net (1500 RON)”
3.
On 24 August 2022, the player sent a default notice to the club and requested payment of
the amount of EUR 22,380 setting a 10 days’ time limit in order to remedy the default,
however to no avail.
II. Proceedings before FIFA
4.
On 6 September 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 player
5.
According to the Claimant, the club finished “the 2021-2022 season in 13th position (out of
16 teams), thereby avoiding relegation, and is currently participating in Liga 1. Therefore, the
Player is entitled to receive a bonus amount of EUR. 5,000 in accordance with the Employment
Contract.”
6.
Furthermore, the player mentions that he scored 4 goals during the 2021-2022 season,
which entitles him to receive a bonus amount of EUR 1200.
REF FPSD-7357
7.
With respect to the additional bonuses referred to by the player, he indicated that the Cclub
has the obligation to pay players additional bonuses provided that certain targets were
reached. Such additional bonuses have been allegedly stipulated in a document titled “La
regulamentul pentru acordarea primelor persoanelor convocated pentru participarea la
pregateria si sustinerea unor jocuri oficiale de fotbal in anul competitional 2021-2033 Liga I”.
8.
On 6 September 2022, the player lodged a claim against the club before FIFA and requested
that the club pay him the total amount of EUR 22,380 as outstanding remuneration plus
interest of 5% p.a., corresponding to the following:
-
EUR 300 as rent allowance for April 2022
EUR 3,300 as rent allowance and salary for May 2022
EUR 3,300 as rent allowance and salary for June 2022
EUR 5,000 as bonus for club remaining in Liga 1
EUR 1,200 as bonus for 4 goals scored
EUR 9,280 as additional bonus
b. Position of the club
9.
Notwithstanding the fact that the club was invited to provide its position to the player’s
claim it failed to do so.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1.
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 6 September 2022
and submitted for decision on 22 November 2022. 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.
2.
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 (October 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 Dutch player and a Romanian club.
3.
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.
REF FPSD-7357
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 6 September 2022, the July 2022
edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand
as to the substance.
b. Burden of proof
4.
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
5.
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
6.
The foregoing having been established, the Single Judge moved to the substance of the
matter and took note of the fact that player indicated that the club failed to comply with
certain contractual financial obligations, namely payment of his outstanding remuneration
for the period between April until June 2022 including certain bonus payments.
7.
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 club and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
8.
The Single Judge first noted that in the case at hand the club bore the burden of proving
that it indeed complied with the financial terms of the contract concluded between the
parties.
9.
Subsequently, the Single Judge noted that – after having been provided with the claim of
the player – the club failed to present its response. By not presenting its position to the
claim, the Single Judge was of the opinion that the club renounced its right of defence and,
thus, accepted the allegations of the player.
REF FPSD-7357
10. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
expressed that he shall take a decision upon the basis of the documentation already on
file; in other words, upon the statements and documents presented by the player.
11. Taking into account the documentation presented by the player, the Single Judge
concluded that the player had duly substantiated his claim pertaining to his outstanding
remuneration including the bonus entitlement as per clause 4 of the contract with
sufficient documentary evidence.
12. In continuation the Single Judge referred to the player’s claim relating to the additional
bonus of EUR 9,280 and in this regard recalled the content of 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.
13. In this context, the Single Judge turned his attention to the documentation brought forward
by the player and acknowledged that the document provided by the player was not signed
by the latter, neither is it an integral part of the employment contract. The Single Judge
therefore concluded that the player did not meet his burden of proof or provided sufficient
corroborating evidence to demonstrate his entitlement to the additional bonus, hence the
Single Judge decided to reject this part of the player’s claim.
14. 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 club is held liable to pay the player the outstanding amounts deriving from the contract
concluded between the parties.
ii. Consequences
15. Having stated the above, the Single Judge turned his attention to the question of the
consequences of such unjustified breach of contract committed by the club and observed
that the outstanding remuneration due to the player are equivalent to EUR 13,100.
16. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided that the club is liable to pay to the player the amounts which were
outstanding under the contract in the total amount of EUR 13,100, corresponding to:
-
EUR 300 as April 2022 rent allowance
EUR 3,300 as May 2022 salary and rent allowance
EUR 3,300 as June 2022 salary and rent allowance
EUR 6,200 as bonus in accordance with clause 4.2 of the contract
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 latter decided to award the player
REF FPSD-7357
interest at the rate of 5% p.a. on the outstanding amounts as from the respective due dates
until the date of effective payment.
iii. Art. 12bis of the Regulations
18. In continuation, bearing in mind the foregoing considerations, 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. In this respect, the Single
Judge confirmed that the Respondent failed to comply with its financial obligations in line
with the contract, without a prima facie justification, and was duly notified of the
contractual breach by the Claimant, who granted the Respondent at least 10 days to cure
its default, to no avail.
19. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent.
20. Moreover, the Single Judge referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating circumstance and
lead to a more severe penalty.
21. Bearing in mind the above and taking into account that this is a first offense of the
Respondent in the past two years, the deciding body decided to impose a warning on the
Respondent.
iv. Compliance with monetary decisions
22. 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.
23. 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.
24. 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
REF FPSD-7357
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.
25. 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.
26. 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
27. 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.
28. 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.
29. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
REF FPSD-7357
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Moussa Sanoh, is partially accepted.
2.
The Respondent, Clubul Sportiv Mioveni, has to pay to the Claimant, the following amount(s):
- EUR 13,100 as outstanding remuneration plus 5% interest p.a. as from 28 November
2022 until the date of effective payment as follows:
-
on the amount of EUR 300 as from 1 May 2022
on the amount of EUR 3,300 as from 1 June 2022
on the amount of EUR 3,300 as from 1 July 2022
on the amount of EUR 5,000 as from 1 July 2022
on the amount of EUR 1,200 as from 1 July 2022
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
REF FPSD-7357
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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