DRC Overdue Payables
Texto da decisão
REF. FPSD-16074
Decision of the
Dispute Resolution Chamber
passed on 4 December 2024
regarding an employment-related dispute concerning the
player Wallace Fortuna dos Santos
BY:
Johan VAN GAALEN (South Africa)
CLAIMANT:
Wallace Fortuna dos Santos, Brazil
Represented by Bichara e Motta Advogados
RESPONDENT:
Kalba, United Arab Emirates
pg. 2
REF. FPSD-16074
I. Facts of the case
1.
On 20 September 2023, the Brazilian player Wallace Fortuna dos Santos (hereinafter, the
Player or the Claimant) and the Emirati club Kalba (hereinafter, the Club or the Respondent)
concluded an employment contract (hereinafter, the Contract) valid as from 20 September
2023 until 19 June 2024.
2.
Pursuant to Clause 3 of the Contract, the Club undertook to pay to the Player (hereinafter,
jointly referred to as the Parties) the following salary:
“1. Amount of 50,000 USD as down payment to be paid on 15-10-2023.
2. Amount of 50,000 USD as down payment to be paid on 25-01-2024.
3. A monthly salary of 66,666 USD from 20-09-2023 until 19 June 2024”.
3.
According to Clause 3 of the Contract, the Club also undertook the following:
“To provide the player with a comprehensive insurance covering injuries, illness and treatment
for the whole duration of this Agreement. In the event of transfer or loan of the player to a third
party, the First party will be exempted from executing this Clause, the Club is committed to
medically treat the second party inside the UAE only or in accordance with its insurance policy,
provided that this is done in accordance with medical reports approved by the first party directly
(medical management or the first party) or on the basis of medical reports approved by
government hospitals”.
4.
Clause 9 of the Contract provided the following:
- The First party shall continue honouring its financial obligations towards the second party in
all the cases where the Player got injured during executing this Agreement in respect with UAEFA
RSTP and the internal regulations of the first party, as follows:
- The First party shall not refrain from paying the Player’s wages or reduce it during the validity
of this Agreement. The Club cannot terminate this Agreement due to the Player’s injury while
executing his obligations under this Agreement.
- The Second party shall continue benefiting with all his rights under this Agreement during his
injury and until he recovers from the injury or becomes fit. Whichever comes first.
- In the case where the Player becomes ill, unfit or injured due to the execution of this Agreement,
the First party must take care of the Player’s injury even if this injury exceeded the duration of
Employment.
pg. 3
REF. FPSD-16074
5.
At the end of March 2024, the Player suffered a knee injury during a friendly match with
the Club.
6.
On 4 April 2024, the Player underwent surgery in Rio de Janeiro, Brazil. According to the
medical report, “The patient was submitted a ACL reconstruction with patellar tendon graft, and
suture of both meniscus. He must do physiotherapy and prepare to return back in eight months”.
7.
Between 30 April and 10 May 2024, the Player requested the Club via WhatsApp the Club’s
official contact in order to send the payment receipts related to his surgery and obtain its
reimbursement. The Player also complained about his late remuneration. In reply, the Club
requested the Player to provide invoices and medical reports.
8.
On 4 July 2024, the Club made a farewell post on Instagram thanking the Player for his
services.
9.
On 17 July 2024, the Player put the Club in default granting a deadline of ten days to pay
the following concepts and amounts:
- USD 50,000 as the first down payment;
- USD 50,000 as the second down payment;
- USD 66,666 as the June 2024 salary; and
- BRL 78,197.50 as medical expenses related to his knee injury.
II. Proceedings before FIFA
10. On 16 September 2024, the Claimant filed the claim at hand before FIFA. A summary of the
Parties’ position is detailed below.
a. Position of the Claimant
11. According to the Player, the Club failed to pay the first and second down payments provided
in the Contract, as well as his June 2024 salary.
12. Moreover, the Player sustained that the Club expressly authorised the Player to undergo
surgery in Brazil. In this respect, and despite the provisions of Clauses 3 and 9 of the
Contract, the Club also failed to reimburse the medical expenses related to his knee injury.
pg. 4
REF. FPSD-16074
13. The Player requested the following relief:
“a) Admit the present claim, implementing a fast-track procedure, pursuant to article 12bis of
the FIFA RSTP.
b) Order the Club to pay the Player the outstanding monthly salary of June 2024, in the amount
of USD 66,666.00 net, plus 5% per annum as from 20 June 2024 until the date of effective
payment.
c) Order the Club to pay the Player the outstanding First Down Payment, in the amount of USD
50,000 net, plus 5% interest per annum as from 16 October 2023 until the date of effective
payment;
d) Order the Club to pay the Player the outstanding Second Down Payment, in the amount of
USD 50,000 net, plus 5% per annum as from 26 January 2024 until the date of effective
payment;
e) Order the Club to pay the Player the total amount of BRL 78,197.50 net, as reimbursement for
his medical expenses, plus 5% interest per annum as from 11 May 2024 until the date of
effective payment;
f) Sanction the Club in accordance with article 12bis of the FIFA RSTP; and
e) Order the Club to bear all administrative and procedural costs related to this procedure (if
any)”.
b. Position of the Respondent
14.
Despite being invited to do so, the Respondent failed to reply to the claim.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter, the Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, it took
note that the present matter was presented to FIFA on 16 September 2024 and submitted
for decision on 4 December 2024. 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.
pg. 5
REF. FPSD-16074
16. Furthermore, 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 par. 1 lit. b) of the October
2024 edition of the Regulations (hereinafter, the Regulations), he is competent to deal with
the matter at stake, which concerns an employment-related dispute with an international
dimension between a Brazilian player and an Emirati club.
17. 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 (October 2024 edition), and considering that the present claim
was lodged on 16 September 2024, the June 2024 edition of said Regulations is applicable
to the matter at hand as to the substance.
b. Burden of proof
18. The Single 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
19. Having established the competence and the applicable regulations, 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 assessing the matter at hand.
i. Main legal discussion and considerations
20. The Single Judge then moved to the substance of the matter, and took note of the fact that
it concerned a claim from a player against a club for outstanding remuneration and
reimbursement of medical costs.
21. In this respect, the Single Judge observed that, according to the Player, the Club had failed
to remit both down payments agreed under the Contract, as well as his monthly
remuneration for June 2024. Furthermore, the Player also claimed being entitled to
reimbursement for the medical costs he had to incur in Brazil in relation to his knee injury.
pg. 6
REF. FPSD-16074
22. The Single Judge also observed that the claim remained uncontested by the Respondent,
and therefore concluded that the decision will be made based on the documents and
arguments on file (cf. art. 21 par. 1 of the Procedural Rules).
23. In this context, the Single Judge acknowledge that his task was to determine, based on the
evidence presented by the Player and considering that his claim remained uncontested by
the Respondent, whether the Claimant was entitled to any of the amounts claimed.
24. In particular, and as to the down payments and other remuneration claimed, the Single
Judge noted that, in casu, the Respondent bore the burden of proving that it indeed
complied with the aforementioned payments. Nonetheless, the Single Judge noted that the
Club failed to reply to the claim, despite being invited to do so, and that therefore it did not
refute the Player’s allegation in this regard, which remained uncontested.
25. Accordingly, the Single Judge determined that, according to the Contract, the Player is
entitled to USD 166,666 which remained outstanding. Nonetheless, the Single Judge
observed that the employment contract did not provide for the payment of these sums on
a net basis and, therefore, decided that he could not award these amounts as such.
26. The foregoing having been established, the Single Judge went on to examine the Player’s
entitlement to the reimbursement claimed. In this respect, the Single Judge observed that,
according to the Player, he had the Club’s authorization to undergo surgery in Brazil, and
the Club undertook to take care of any costs pursuant to Clause 9 of the Contract.
27. In this respect, the Single Judge noted that, in accordance with the aforementioned
provision, the Club indeed undertook to “honour his financial obligations” in case the Player
got injured “until he recovers or becomes fit” and “even if this injury exceeded the duration of
Employment”.
28. The Single Judge remarked that the above is further confirmed by the WhatsApp
correspondence between the Parties, in which after the Player asked for the
reimbursement of the medical costs, the Club requested him to provide the relevant
invoices and medical reports relating to the surgery.
29. Accordingly, and considering that the Player provided receipts and proof of payments
related to the medical expenses incurred, the Single Judge decided that the Player is also
entitled to the reimbursement of the medical costs incurred in Brazil, in the amount of BRL
78,197.50.
30. In view of the foregoing considerations 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 as well as the reimbursement of
the medical costs, which in total amounts to USD 166,666 and BRL 78,197.50, respectively.
pg. 7
REF. FPSD-16074
1.
In addition, taking into consideration the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber in this regard, the Single Judge decided to award the
Claimant interest at the rate of 5% per annum on the outstanding amounts as from the day
following their corresponding due dates until the date of effective payment as follows:
- USD 50,000, corresponding to the first down payment, as from 16 October 2023;
- USD 50,000, corresponding to the second down payment, as from 26 January 2024;
- USD 66,666, corresponding to the monthly remuneration for June 2024, as from 20 June
2024; and
- BRL 78,197.50, corresponding to the cost incurred by the Player for his surgery, as from
11 May 2024.
ii. Art. 12bis of the Regulations
31. 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.
32. 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.
33. 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.
34. 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.
35. Lastly, 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.
pg. 8
REF. FPSD-16074
iii. Compliance with monetary decisions
36. 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.
37. 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.
38. 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.
39. 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.
40. 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
41. 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.
42. 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.
43. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the Parties.
pg. 9
REF. FPSD-16074
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Wallace Fortuna dos Santos, is partially accepted.
2.
The Respondent, Kalba, must pay to the Claimant the following amount(s):
- USD 166,666 as outstanding remuneration plus 5% interest per annum as follows:
- 5% interest p.a. over the amount USD 50,000 of as from 16 October 2023 until the
date of effective payment;
- 5% interest p.a. over the amount USD 50,000 of as from 26 January 2024 until the date
of effective payment; and
- 5% interest p.a. over the amount USD 66,666 of as from 20 June 2024 until the date
of effective payment.
- BRL 78,197.50 as reimbursement plus 5% interest per annum as from 11 May 2024 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.
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.
pg. 10
REF. FPSD-16074
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 11
REF. FPSD-16074
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 – Legal & Compliance Division
396 Alhambra Circle, 6th floor, Coral Gables, Miami, Florida, USA 33134
legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
pg. 12