DRC Overdue Payables
Texto da decisão
REF. FPSD-16281
Decision of the
Dispute Resolution Chamber
passed on 14 November 2024
regarding an employment-related dispute concerning
the player Justin Alberto Simons Samaniego
COMPOSITION:
Clifford J. HENDEL (USA & France), Deputy Chairperson
Iñigo RIESTRA (Mexico), Member
Gonzalo DE MEDINILLA (Spain), Member
CLAIMANT:
Justin Alberto Simons Samaniego, Panama
Represented by Paola Vallarino
RESPONDENT:
Zamora F.C., Venezuela
pg. 2
REF. FPSD-16281
I. Facts of the case
1.
On 8 January 2022, the Panamanian player, Justin Alberto Simons Samaniego (hereinafter:
the Player or the Claimant), and the Venezuelan club, Zamora F.C. (hereinafter: the Club or
the Respondent), entered into an employment contract (hereinafter: the Contract) valid as
from the date of the signature until the Club ended its participation in the 2022 season.
2.
In clause 3, the parties established the Player’s remuneration as follows:
“TERCERA: EL CLUB se compromete a pagar a EL FUTBOLISTA PROFESIONAL, este contrato
La suma equivalente a dos mil dolares americanos (2.000 US$) los mismos tendrán que
ser cancelados en divisas (USD) o en la moneda de curso legal (BOLIVARES DIGITALES)
mensuales y que a los efectos referenciales y con base a lo establecido en el Artículos 128
y 129 de la Ley del Banco Central de Venezuela.”
Freely translated into English:
“THIRD: THE CLUB agrees to pay THE PROFESSIONAL FOOTBALL PLAYER, this contract the
sum equivalent to two thousand U.S. dollars (2,000 US$) the same will have to be paid in
foreign currency (USD) or in the legal tender (BOLIVARES DIGITALES) monthly and that for
reference purposes and based on the provisions of Articles 128 and 129 of the Law of the
Central Bank of Venezuela.”
3.
In clause 9, the following was stipulated:
“NOVENA: (REPATRIACION) EL CLUB se hace responsable de EL JUGADOR PROFESIONAL
durante la permanencia en el país de igual manera proporcionara, un boleto de ida y
vuelta, así como dar cumplimiento de retorno a su país de origen al vencimiento del
presente contrato, EL CLUB se encargara de cubrir los gastos que se generen en estos
boletos.”
Freely translated into English:
“NINTH: (REPATRIATION) THE CLUB is responsible for THE PROFESSIONAL PLAYER during
the stay in the country in the same way will provide, a round trip ticket, as well as to
comply with return to their country of origin at the expiration of this contract, THE CLUB
will be responsible for covering the expenses generated in these tickets.”
4.
Additionally, clause 10 included, inter alia, the following provisions:
“(…) EL FUTBOLISTA PROFESIONAL deberá tratar con cuidado las propiedades del club y
devolverlas en el mismo estado en que las recibió, tras la expiración del contrato. El CLUB
le suministrara a EL JUGADOR PROFESIONAL una vivienda, habitación, casa o
apartamento y EL CLUB podrá realizar el correspondiente descuento en caso de que EL
pg. 3
REF. FPSD-16281
FUTBOLISTA PROFESIONAL cause daños a los bienes, incluyendo los de habitación, casa
o apartamento si ésta se le hubiere sido suministrada EL FUTBOLISTA. (…)”
Freely translated into English:
"(...) THE PROFESSIONAL PLAYER shall treat with care the properties of the club and return
them in the same condition in which he received them, after the expiration of the
contract. The CLUB will provide THE PROFESSIONAL PLAYER with a dwelling, room, house
or flat and THE CLUB may make the corresponding discount in case THE PROFESSIONAL
PLAYER causes damage to the property, including the room, house or flat if it has been
provided to THE PLAYER. (...)”.
5.
On 20 January 2022, the Player obtained a “T” visa valid until 19 January 2023.
6.
On 27 January 2022, the Player entered Venezuela.
7.
On 19 May 2022, the Player received USD 1,890 from the Club, as salary for April 2024. The
Club paid the Player USD 180 as housing allowance and deducted USD 290 for rent.
8.
On 9 June 2022, the Player received USD 1,890 from the Club, as salary for May 2024. The
Club paid the Player USD 180 as housing allowance and deducted USD 290 for rent.
9.
On 18 July 2022, the Player received USD 1,890 from the Club, as salary for June 2024. The
Club paid the Player USD 180 as housing allowance and deducted USD 290 for rent.
10. On 22 August 2022, the Club and its players concluded a document titled “Acuerdo de
premiación” (freely translated into English “Award agreement” and hereinafter: Agreement),
which established the following in clause 2:
“SEGUNDA: El CLUB acuerda otorgarle a todo el Plantel de Jugadores y Cuerpo Técnico el
Trece por ciento (13%) del dinero que le ingrese al Club por parte de CONMEBOL, con
motivo de clasificación a Pre-Libertadores Fase 1 y 2 (Año 2023).”
Freely translated into English:
“SECOND: The CLUB agrees to grant to all the Players and Technical Staff thirteen percent
(13%) of the money paid to the Club by CONMEBOL for the purpose of qualifying for PreLibertadores Phase 1 and 2 (Year 2023)”.
11. On 25 October 2022, the Player left Venezuela and returned to Panama.
12. By correspondence dated 11 July 2024, the Player put the Club in default and requested
payment of USD 33,650 setting a 10 days’ time limit in order to remedy the default.
pg. 4
REF. FPSD-16281
II. Proceedings before FIFA
13. On 27 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
14. According to the Claimant, the Club failed to pay him the salaries for October, November
and December 2022, as the Contract was valid until the end of the 2022 season, which was
on 31 December 2022.
15. Additionally, the Player asserted that that the Club owed him USD 1,445 corresponding to
a bonus for qualifying for the previous stage of the Copa Libertadores 2023. Furthermore,
the Player stated that the Club made several deductions from nine monthly salaries for
“rent”, totalling USD 990, despite the Contract stating that the Club was required to provide
him with accommodation at no cost. Therefore, he seeks reimbursement for this amount.
16. In addition, the Player alleged that he paid USD 1,150 for flight tickets for himself and his
wife to return to Panama, when the Contract stipulated that the Club was responsible for
providing these tickets. What is more, since he had a “T” visa, the Player stated that he was
fined by the Venezuelan authorities because this visa was only for tourism and not for work.
Thus, the Player requested reimbursement of USD 65 for this fine that he had to pay.
17. Finally, the Player argued that due to this situation, he received a ban from entering
Venezuelan territory for two years. In this sense, the Player requested compensation for
USD 24,000 based on the specificity of sport, as this affected his migratory record, and now
he is subject to an unnecessary stress every time he travels.
18. Based on all the above, the Player requested the total amount of USD 33,650 plus interest
as from the respective due dates, and made the following request for relief:
“En consecuencia, solicitamos el pago íntegro de la remuneración económica adeudada
en concepto de pagos mensuales, bonificaciones adicionales, gastos no consensuados
asumidos por el jugador, así como una indemnización por los daños ocasionados a la
reputación e historial migratorio por incumplimiento de su responsabilidad
administrativa para con el jugador.
Subsidiariamente esta parte, solicita a este honorable tribunal que, de no otorgar en su
totalidad la indemnización solicitada, que considere y otorgue indemnización de acorde
a su criterio en base al principio de especificidad del deporte y al daño causado al
jugador.”
pg. 5
REF. FPSD-16281
Freely translated into English:
“Consequently, we request full payment of the financial remuneration owed in respect of
monthly payments, additional bonuses, non-consensual expenses incurred by the player,
as well as compensation for the damage caused to the player's reputation and migration
history due to the breach of his administrative responsibility towards the player.
In the alternative, this party requests this Honourable Court, if it does not award the
requested compensation in full, to consider and award compensation in accordance with
its criteria based on the principle of specificity of sport and the damage caused to the
player.”
b. Position of the Respondent
19. Despite having been invited to do so, the Respondent failed to reply to the claim.
pg. 6
REF. FPSD-16281
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
20. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or DRC) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 27 September 2024 and submitted for
decision on 14 November 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.
21. Furthermore, the Chamber 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
Regulations on the Status and Transfer of Players (October 2024 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 Panamanian
player and a Venezuelan club.
22. Subsequently, the Dispute Resolution Chamber analysed which regulations should be
applicable as to the substance of the matter. In this respect, it confirmed that, in
accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(October 2024 edition) and considering that the present claim was lodged on 27 September
2024, the June 2024 edition of said regulations (hereinafter: the Regulations) is applicable to
the matter at hand as to the substance.
b. Admissibility
23. Then, the Chamber turned its attention to art. 23 par. 3 of the Regulations, which stipulates
that the decision-making bodies of FIFA shall not hear any dispute if more than two years
have elapsed since the facts leading to the dispute arose. The application of this time limit
shall be examined ex officio in each individual case.
24. In this context, the Chamber recalled that the present claim was lodged in front of FIFA on
27 September 2024. Therefore, in line with art. 23 par. 3 of the Regulations, any amounts
fallen due before 27 September 2022 are affected by the statute of limitations.
25. The Chamber noted that, in the present case, the Claimant stated that over nine months,
i.e., from January to September 2022, the Club unlawfully deducted USD 110 from his
monthly salaries. Therefore, the Player inter alia requested a reimbursement involving
salaries from January 2022 until September 2022.
pg. 7
REF. FPSD-16281
26. Since the Contract was silent about the due dates for the salaries, the Chamber, following
the long-standing jurisprudence of the Football Tribunal, considered that the salaries were
to be paid on the last day of each month. In this respect, the salaries from January 2022
until August 2022 were to be paid before 27 September 2022, and only the salary for
September 2022 was to be paid after that date.
27. The Chamber thus concluded that the Claimant’s request is partially time-barred.
Consequently, the specific part of the Claimant’s claim for reimbursement involving salaries
from January 2022 until August 2022 is considered inadmissible.
28. For the sake of completeness, the Chamber pointed out that all other claims of the Player
are admissible, as less than two years have elapsed since the events giving rise to the
dispute.
c. Burden of proof
29. The Chamber 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 Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
d. Merits of the dispute
30. Having established the competence and the applicable regulations, the Chamber entered
into the merits of the dispute. In this respect, the Chamber started by acknowledging all
the above-mentioned facts as well as the arguments and the documentation on file.
However, the Chamber emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
assessing the matter at hand.
i. Main legal discussion and considerations
31. The Chamber then moved to the substance of the matter and took note of the fact that this
is a claim of a player against a club for outstanding remuneration and compensation.
32. The Chamber recalled that, according to the Player, the Club failed to pay him his salaries,
a bonus and for flight tickets. Additionally, the Player argued that the Club made unlawful
deductions and, due to the Club’s failure to process a correct visa, he was imposed a ban
from entering the Venezuelan territory, which must be compensated.
pg. 8
REF. FPSD-16281
33. Since the Respondent did not provide its position on the claim, and according to the longstanding jurisprudence of the Football Tribunal, it must be considered that it renounced its
right to defence. Consequently, the decision shall be taken based on the documentation
already in the file (i.e., the statements and documents presented by the Claimant).
34. In this context, the Chamber acknowledged that its task was to determine whether the Club
owes any amount to the Player.
35. First, the Player argued that the Club failed to pay his salaries for October, November and
December 2022. In this respect, the Player argued that the Contract was valid until the end
of the 2022 season and, therefore, he was entitled to these salaries.
36. The Chamber observed that the Contract stipulated that it was valid until the end of the
Club’s participation in that season, and not until the end of the season itself. However, the
Chamber also noted that there is no evidence on file regarding when the Club’s
participation in the season actually ended.
37. Additionally, the Chamber pointed out that, according to the evidence on file and the
information retrieved from TMS, the conclusion of the 2022 season was on 31 December
2022. It is important to note that the Club did not argue that its participation ended before
the conclusion of the season. In this regard, as there is no other indication to establish the
expiration date of the Contract, the Chamber could only conclude that the Contract ended
with the conclusion of the 2022 season. Thus, in the Chamber’s opinion, the Player was
entitled to the salaries for October, November and December 2022.
38. Since the Club did not provide any evidence of having paid these salaries, the Chamber
decided to award the Player the salaries for October, November and December 2022,
totalling USD 6,000, with interest at 5% p.a. starting from the day following each due date,
as the Player claims interest from the moment the debt was generated.
39. Then, the Chamber noted that the Player requested a bonus for qualifying for the previous
stage of the Copa Libertadores 2023. While it is true that the parties established in the
Agreement that if the Club qualified for the previous stage of the Copa Libertadores 2023,
the players would receive a bonus, it is also true that the Player did not provide any
evidence demonstrating that this condition was fulfilled. Therefore, the Chamber decided
to reject this claim due to lack of evidence.
40. For the sake of completeness, the Chamber wished to remark that the Player also did not
provide any calculation to explain why he is requesting USD 1,445 for this bonus, since the
Agreement only stipulated that the players and technical staff would receive 13% of the
amount that the Club received from CONMEBOL.
41. In connection with the reimbursement for the alleged deductions, the Chamber recalled
that it has already determined that any claim for reimbursement regarding the salaries
pg. 9
REF. FPSD-16281
from January to August 2022 is inadmissible. Hence, the Chamber could only analyse
whether the Club made an unlawful deduction from the Player’s salary for September 2022.
42. Nonetheless, the Chamber noted that the Player only provided salary receipts for April,
May and June 2022. Although the Club deducted USD 190 from his salaries during those
months, it is not possible to determine if the Player also suffered this deduction in
September. In this respect, the Chamber decided to reject this claim due to lack of
evidence.
43. Moreover, the Chamber observed that the Player argued that he paid USD 1,150 for the
flight tickets to return to Panama, for himself and his wife, when the Club was contractually
obliged to provide these tickets.
44. In this sense, although clause 9 of the Contract stated that the Club should provide the
Player with one roundtrip flight ticket, there is no evidence that the Player spent USD 1,150
and incurred these costs due to the Club’s failure. In any event, the ticket for the Player’s
wife was not included in the Contract. Consequently, the Chamber also decided to reject
this claim due to lack of evidence.
45. The Player also requested a reimbursement of USD 65 for an alleged fine imposed on him
by the Venezuelan authorities for being in the country without the corresponding visa.
Nonetheless, there is no evidence on file showing that a fine was imposed on him or that
he paid USD 65 for this, reason why the Chamber decided to reject the claim.
46. Finally, the Player requested USD 24,000 as compensation for receiving a ban from entering
Venezuela for two years. The Player based his request on the specificity of sports and the
circumstances he suffered.
47. First, the Chamber noted that the Player failed to provide any evidence of this alleged ban.
Although he argued that he was not given a copy of the document he allegedly signed and
that he was not allowed to take a picture with his phone, there is no evidence to confirm
that a ban was indeed imposed on him.
48. Additionally, the Player did not provide any evidence of the alleged damages he suffered
beyond his statement, nor did he present any calculation demonstrating why he quantifies
his claim at USD 24,000. In fact, the Player failed to establish the legal basis for this claim,
as he only referred to the “specificity of sport”, without arguing why he was entitled to
compensation.
49. Based on the above, the Chamber decided to reject this claim.
pg. 10
REF. FPSD-16281
ii. Art. 12bis of the Regulations
50. In continuation, the Chamber 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.
51. To this end, the Chamber confirmed that the Player put the club in default of payment of
the amounts sought and granted the club a 10-day deadline to cure such breach of
contract.
52. Accordingly, the Chamber confirmed that the Club had delayed a due payment without a
prima facie contractual basis for more than 30 days. It followed that the criteria enshrined
in art. 12bis of the Regulations was met in the case at hand.
53. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Club. On account of the above, the Chamber
decided to impose a warning on the Club in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
54. In this connection, the Chamber 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
55. Finally, taking into account the applicable Regulations, the Chamber 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.
56. In this regard, the DRC 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.
57. Therefore, bearing in mind the above, the DRC 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.
pg. 11
REF. FPSD-16281
58. 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.
59. The DRC 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.
e. Costs
60. The Chamber 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 Chamber decided that no procedural costs were to be
imposed on the parties.
61. Likewise, and for the sake of completeness, the Chamber recalled the contents of art. 25
par. 8 of the Procedural Rules and decided that no procedural compensation shall be
awarded in these proceedings.
62. Lastly, the DRC concluded its deliberations by rejecting any other requests for relief made
by any of the parties.
pg. 12
REF. FPSD-16281
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Justin Alberto Simons Samaniego, is partially accepted insofar it
is admissible.
2.
The Respondent, Zamora F.C., must pay to the Claimant the following amount:
- USD 6,000 as outstanding remuneration plus 5% interest p.a. as follows:
- 5% interest p.a. over the amount USD 2,000 of as from 1 November 2022 until the date
of effective payment;
- 5% interest p.a. over the amount USD 2,000 of as from 1 December 2022 until the date
of effective payment;
- 5% interest p.a. over the amount USD 2,000 of as from 1 January 2023 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. 13
REF. FPSD-16281
8.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 14
REF. FPSD-16281
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. 15