DRC Overdue Payables
Texto da decisão
REF FPSD-7753
Decision of the
Dispute Resolution Chamber
passed on 7 December 2022
regarding an employment-related dispute concerning the player Yoko
Tanaka
BY:
Jorge Gutierrez, Costa Rica
CLAIMANT:
Yoko Tanaka, Japan
Represented by Nan Sato and Shoichi Sugiyama
RESPONDENT:
Rayo Vallecano de Madrid, S.A.D., Spain
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REF FPSD-7753
I. Facts of the case
1.
On 1 July 2021, the Japanese player, Ms Yoko Tanaka (hereinafter: the player or the
Claimant), and the Spanish club, Rayo Vallecano de Madrid S.A.D. (hereinafter: the club or
the Respondent) concluded an employment contract valid as until 30 June 2022
(hereinafter: the contract).
2.
According to clause 2 of the contract, the club undertook to pay the player a monthly
salary of EUR 1,750, payable within the four first days of each subsequent month.
3.
In addition, clause 2.3 of the contract read as follows:
Original in Spanish:
“Además la Jugadora tendrá derecho a hacer uso durante la temporada 2021-2022 de
una vivencia en régimen compartido que el Rayo Vallecano le facilitará, así como un
billete de avión de ida y vuelta a Japón que podrá utilizar en cualquier fecha dentro del
periodo de vivencia del contrato.”
Freely translated to English as follows:
“In addition, the player will have the right to use during the 2021-2022 season a shared
living arrangement provided by [the club], as well as a return flight ticket to Japan that
can be used at any date within the living period of the contract”.
4.
Finally, clause 10 of the contract read as follows:
Original in Spanish:
“Todas las controversias laborales que pudieran surgir de la aplicación o interpretación
de este contracto serán sustanciadas ante los Juzgados y Tribunales de lo Social de
Madrid. En lo no previsto en el presente contrato, se estará a lo dispuesto en el Real
Decreto 1006/1985 de 26 de junio, por el que se regula la relación laboral especial de
los deportistas profesionales, Convenio Colectivo vigente para las jugadoras que
presten sus servicios en Primera División Femenina de Fútbol y demás normas de
aplicación.”
Freely translated to English:
“All labour disputes that may arise from the application or interpretation of this
contract shall be heard before the Labour Courts and Tribunals of Madrid. In all matters
not provided for in this contract, the provisions of Royal Decree 1006/1985 of 26 June
1985, which regulates the special employment relationship of professional athletes, the
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Collective Bargaining Agreement in force for players who provide their services in the
First Division Women's Football and other applicable regulations shall apply”.
5.
On 3 and 4 September 2021, the player flew from Tokyo (Japan) to Madrid (Spain) with a
stopover in Istanbul (Türkiye). The tickets were issued on 1 September 2021, costed JPY
188,060, and were paid by the player.
6.
On 24 and 25 May 2022, the player flew from Madrid (Spain) to Tokyo (Japan) with a
stopover in Frankfurt (Germany). The tickets were issued on 21 May 2022, costed JPY
178,590, and were paid by the player.
7.
On 29 July 2022, the player put the club in default and requested payment of EUR 3,500
as outstanding salaries (July and August 2021) plus JPY 366,650 as reimbursement of flight
tickets. The player granted the club a 10 days’ deadline to remedy the breach, to no avail.
II. Proceedings before FIFA
8.
On 5 October 2022, the player filed the claim at hand before FIFA. In doing so, she referred
to the content of the contract and the notice sent on 29 July 2022, which remained
unanswered by the club. As such, she requested to be awarded the following amounts:
a.
b.
c.
d.
9.
EUR 1,750 as the salary of July 2021;
EUR 1,750 as the salary of August 2021;
JPY 188,060 as reimbursement of her flight from Japan to Spain; and
JPY 178,590 as reimbursement of her flight from Spain to Japan.
The player did not claim any interest over the cited amounts.
10. The club failed to reply to the player’s claim despite being invited to do so by the FIFA
general secretariat.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
11. 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 5 October
2022 and submitted for decision on 7 December 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.
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12. 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, par. 1, lit. b)
of the Regulations on the Status and Transfer of Players (October 2022 edition), the
Dispute Resolution Chamber (DRC) is in principle competent to deal with the matter at
stake, which concerns an employment-related dispute with an international dimension
between a Japanese player and a Spanish club.
13. For the sake of completeness, the Single Judge outlined that he was observant of the
clause included in the contract referring to the national law and the dispute resolution
system in Spain. Nevertheless, he referred to the well-established jurisprudence of the
DRC and confirmed that, by failing to reply to the player’s claim and, specifically, to
challenge the jurisdiction of FIFA in the case at hand, the club tacitly accepted it; therefore,
the claim was deemed admissible.
14. 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 (October 2022 edition),
and considering that the present claim was lodged on 5 October 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
15. 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
16. The 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.
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i. Main legal discussion and considerations
17. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it consists of a claim for overdue payables.
18. The Single Judge equally noted that the club, for its part, failed to present its response to
the claim of the player, in spite of having been invited to do so. In this way, he considered
that the club renounced its right to defence and thus accepted the allegations of the
player. Furthermore, the Single Judge highlighted that in accordance with art. 21 par. 1
and 22 of the Procedural Rules, he should take a decision upon the basis of the
documents on file, in other words, upon the statements and documents presented by the
player.
19. Taking the above into consideration, the Single Judge acknowledged that the player’s
requests are contractually based and supported by documentary evidence. In contrast,
the Single Judge established that the club bore the burden of proving that it indeed
complied with its financial obligations but failed to do so.
20. As a consequence, the Single Judge decided that the player should be entitled the
outstanding salaries (EUR 3,500) and the reimbursements (JPY 366,650) sought on the
basis of the general legal principle of pacta sunt servanda.
21. Furthermore, the Single Judge outlined that in line with the constant practice of the DRC
in this regard, the player would in principle be entitled to interest at the rate of 5% p.a. on
the outstanding amounts as from the respective due dates until the date of effective
payment. Nevertheless, as the player did not make any request in this regard (i.e.
interest), the Single Judge concluded that such concept could not be awarded in line with
the principle of ne ultra petita.
22. Based on the foregoing, the Single Judge concluded that the claim of the player was
entirely accepted.
ii. Article 12bis of the Regulations
23. Having established the above, 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.
24. 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 for more than 30 days, and granted the club
with 10 days to cure such breach of contract.
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25. Accordingly, the Single Judge also 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 were met in the case at hand.
26. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations
she has competence to impose sanctions on the club. On account of the above and
bearing in mind that this is the first offense by the club within the last two years, the Single
Judge decided to impose a warning on the club in accordance with art. 12bis par. 4 lit. a)
of the Regulations.
27. In this connection, the Single Judge highlighted that a repeated offence will be considered
as an aggravating circumstance and lead to more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
iii. Compliance with monetary decisions
28. 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.
29. 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.
30. 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
31. 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.
32. 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.
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d. Costs
33. 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.
34. 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.
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IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Yoko Tanaka, is accepted.
2.
The Respondent, Rayo Vallecano de Madrid, S.A.D., has to pay to the Claimant, the
following amounts:
-
EUR 3,500 as outstanding remuneration; and
-
JPY 366,650 as outstanding remuneration.
3.
A warning is imposed on the Respondent.
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, 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.
6. 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.
7. 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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