DRC Overdue Payables
Texto da decisão
REF FPSD-3569
Decision of the
Dispute Resolution Chamber
passed on 09 November 2021
regarding an employment-related dispute concerning the player
Chinwemwe Gilroy Takudzwa
BY:
Philippe Diallo, France
CLAIMANT:
Chinwemwe Gilroy Takudzwa, Zimbabwe
Represented by Linos Kabwela Chalwe
RESPONDENT:
Buildcon FC, Zambia
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REF FPSD-3569
I.
Facts of the case
1.
On 1 January 2020, the Zimbabwean player, Mr Chinwemwe Gilroy Takudzwa (hereinafter:
the player or the Claimant), and the Zambian club, Buildcon FC (hereinafter: the club or the
Respondent) concluded an employment contract valid as from the date of signature until 31
December 2020 (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 1,600 net.
3.
On the same date, i.e. 1 January 2020, the player and the club 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 14 working days after the receipt of the International Transfer
Certificate (ITC) from FIFA; and
b. USD 5,000 by 30 May 2020.
4.
In accordance with the information available in the Transfer Match System (TMS), the player’s
ITC was delivered on 2 January 2020.
5.
On 9 April 2020, the club allegedly notified its players that it would only pay “an upkeep
allowance of K 5,000.0 to each individual per month for the entire period that the league
remained suspended”.
6.
On 14 July 2021, the player put the club in default and granted it with a 10 days’ deadline in
order to proceed the payment of USD 22,800, corresponding to his salaries from January to
September 2020 (USD 1,600 each) plus the sign-on fee.
II. Proceedings before FIFA
7.
On 6 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.
9.
Therefore, he requested to be awarded his outstanding remuneration plus 5% interest p.a.
as from the due dates, as follows:
a. USD 10,000 for the sign-on fee; and
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b. USD 12,800 for the salaries from January to August 2020 (being USD 1,600 each).
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. ZMW 2,000 on 7 April 2020;
b. ZMW 2,000 on 11 May 2020; and
c. ZMW 2,000 on 9 July 2020.
11. Notwithstanding the above, the club referred to its notice of unilateral variation of the
employment contract due to the COVID-19 pandemic and stated that the salaries from April
to June 2020 were reduced to ZMW 5,000.
12. Therefore, the club concluded that the outstanding remuneration due to the player amounts
to USD 16,898.77 only.
c. Rejoinder of the player
13. In his rejoinder, the player first of all informed that he had never received any notice from the
club regarding an eventual variation of his salaries. Furthermore, he claimed that no
agreement was ever signed between the parties.
14. Secondly, the player opposed the club’s allegations as to the partial payments delivered in
April, May and July. In this regard, the player clarified that he received ZMW 2,000 on 7 April
2020 and 11 May 2020, however held that said amounts were only paid “for food because
they had not been paid since February 2020”. In addition, he acknowledged receipt of the
ZMW 7,000 on 9 July 2020.
15. Lastly, the player reiterated his requests for relief and requested additional USD 3,000 as legal
costs.
d. Final comments of the club
16. In spite of being invited to do so, the club failed to provide its final comments.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
17. 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 2021
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and submitted for decision on 9 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.
18. 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 (August 2021 edition),
he is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Zimbabwean player and a Zambian club.
19. 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 6 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
20. 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
21. 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. The Single Judge
highlighted that the submissions of the parties as well as the evidence provided were unclear
and thus that he made his determination on the basis of the burden of proof established in
the Procedural Rules.
22. The foregoing having been established, the Single Judge moved to the substance of the
matter and took note that the case at hands pertains to a claim lodged by the player against
the club for outstanding remuneration in connection with the employment contract
concluded between the parties.
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23. In particular, the Single Judge observed that the player pointed out that the club failed to
deliver his salaries from January to August 2020, as well as his sign-on fee. The club, on the
other hand, maintained that: (i) part of the remuneration sough was delivered; and (ii) part
of the player’s salaries was validly reduced due to COVID-19 (i.e. from April to June 2020).
24. In this context, the Single Judge deemed that it was his task to rule on the following:
a. Should the payments made by the club on 7 April, 11 May and 9 July 2020 be considered
as part of the player’s remuneration and, if so, factored in the calculation?
b. Were the player’s salaries from April to June 2020 validly reduced in connection with
COVID?
c. Which amounts are indeed due to the player?
d. Is art. 12bis of the Regulations applicable to the case at hand?
e. Which are the consequences that follow from the above questions?
25. 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 made by the club on 7 April, 11 May and 9 July 2020
be considered as part of the player’s remuneration and, if so, factored in
the calculation?
26. Firstly, the Single Judge noted that, in spite of contesting the signature of the list dated 7
April and 11 May 2020, the player confirmed he was indeed paid the amounts indicated by
the club. He however claimed that they were “for food”. Moreover, the player confirmed
receipt of the payment dated 9 July 2020.
27. In light of the above, the Single Judge carefully analysed the employment contract and noted
that it lacked of any provision regarding the club’s duty to cover alimentation expenses.
Therefore, the Single Judge was of the opinion that said amounts can only be considered to
have been paid as part of the player’s remuneration, hence factored in the calculation.
28. If followed from the above that the club’s allegations in this respect shall be upheld.
29. For the sake of the completeness, the Single Judge wished to stress that, since the payments
were made in local currency, he deemed it appropriate to consider the exchange rate of the
date of the payment.
b. Were the player’s salaries from April to June 2020 validly reduced in
connection with COVID-19?
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30. Subsequently, the Single Judge went on analysing the club’s position as to the COVID-19
pandemic and observed that the player’s salaries from April to June 2020 were reduced from
USD 1,600 to ZWM 5,000 in accordance with the notice supposedly sent on 9 April 2020.
31. In this respect, the Single Judge found it essential recall that FIFA issued a set of guidelines,
the COVID-19 Guidelines, which aim at providing appropriate guidance and
recommendations to member associations and their stakeholders, to both mitigate the
consequences of disruptions caused by COVID-19 and ensure that any response is
harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an
additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the
most relevant questions in connection with the regulatory consequences of the COVID-19
outbreak and identifies solutions for new regulatory matters.
32. The Single Judge also wished to refer to the fact that said guidelines – as per the explicit
wording of FAQ no. 16, as well as pages 6 and 7 of the FIFA COVID-19 Guidelines – are only
applicable to “unilateral variations to existing employment agreements”. The Single Judge
further noted that for the assessment of disputes that are presented before the FIFA judicial
bodies concerning the unilateral termination of a contract, the FIFA Regulations as well as the
established jurisprudence of the Football Tribunal shall apply.
33. Additionally, analysing the concept of a situation of force majeure, the Single Judge noted
that, based on the contents of the FIFA COVID-19 Guidelines and the FIFA COVID-19 FAQ,
FIFA did not declare that the COVID-19 outbreak was a force majeure situation in any specific
country or territory, or that any specific employment or transfer agreement was impacted by
the concept of force majeure. In other words, in any given dispute, it is for a party invoking
force majeure to establish the existence of said event under the applicable law/rules as well
as the consequences that derive in connection thereto. The analysis of whether a situation of
force majeure existed has to be considered on a case-by-case basis, taking into account all
the relevant circumstances.
34. Bearing in mind the considerations above, the Single Judge considered that the club did not
advance any evidence capable of proving a legal situation entitling it to unilaterally vary the
terms of the employment contract under the national law. In addition, the Single Judge also
found it noteworthy that the club – in spite of having the opportunity to do so: (i) did not
prove that the correspondence submitted together with its reply giving notice of the salaries’
reduction was indeed delivered to the player; nor (ii) provided any document capable of
demonstrating that they had engaged in good faith negotiations.
35. Taking the above into consideration, as well as the fact that the player’s salaries were reduced
to almost 20% of their original value (i.e. from EUR 1,600 to approx. EUR 292), the Single
Judge was firm to determine that the unilateral variation of the employment contract could
not be considered licit and should be disregarded.
c.
Which amounts are indeed due to the player?
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36. The foregoing having been established, the Single Judge concluded the club was contractually
bound to pay the player the following amounts:
a. USD 1,600 as the salary of January 2020;
b. USD 1,600 as the salary of February 2020;
c. USD 1,600 as the salary of March 2020;
d. USD 1,600 as the salary of April 2020;
e. USD 1,600 as the salary of June 2020;
f. USD 1,600 as the salary of July 2020;
g. USD 1,600 as the salary of August 2020;
h. USD 10,000 as sign-on fee.
37. Notwithstanding the above, the Single Judge pointed out that USD 319.80 should be
deducted from the January of 2020, corresponding to the payments made by the club on 7
April, 11 May and 9 July 2020 (i.e. approx. USD 106.60 each).
38. 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.
d. Is art. 12bis of the Regulations applicable to the case at hand?
39. 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.
40. 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.
41. 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.
42. 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.
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43. 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.
e.
Which are the consequences that follow?
44. 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.
45. 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.
46. 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.
47. 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.
48. 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.
49. 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.
50. 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.
51. Lastly, the Single Judge concluded its 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, Chinwemwe Gilroy Takudzwa, is partially accepted.
2.
The Respondent, Buildcon FC, has to pay to the Claimant, the following amounts:
-
USD 5,000 as outstanding remuneration plus 5% interest p.a. as from 20 January 2020
until the date of effective payment;
-
USD 1,280.20 as outstanding remuneration plus 5% interest p.a. as from 1 February 2020
until the date of effective payment;
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 March 2020 until
the date of effective payment;
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 April 2020 until
the date of effective payment;
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 May 2020 until
the date of effective payment;
-
USD 5,000 as outstanding remuneration plus 5% interest p.a. as from 30 May 2020 until
the date of effective payment;
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 June 2020 until
the date of effective payment;
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 July 2020 until
the date of effective payment;
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 August 2020 until
the date of effective payment; and
-
USD 1,600 as outstanding remuneration plus 5% interest p.a. as from 1 September
2020until 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.
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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 the ban shall
be of 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 article 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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