DRC Overdue Payables
Texto da decisão
REF FPSD-6068
Decision of the
Dispute Resolution Chamber
passed on 20 July 2022
regarding an employment-related dispute concerning the player Fortunato
Gilberto Valdenesio
BY:
Sihon GAUCI, Malta
CLAIMANT:
Fortunato Gilberto Valdenesio, Brazil
Represented by Nilo Effori
RESPONDENT:
Hougang United Football Club, Singapore
Represented by Solitaire LLP
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REF FPSD-6068
I. Facts of the case
1.
On 7 December 2020, the Singaporean club, Hougang United Football Club (hereinafter:
the club or the Respondent) sent the Brazilian player, Mr Fortunato Gilberto Valdenesio
(hereinafter: the player or the Claimant), a letter titled “Letter of Offer: Professional Player”
(hereinafter: the employment offer) with inter alia the following conditions (quoted
verbatim):
“This offer is conditional and subjected to the following:
1. Approval granted by the Football Association of Singapore (FAS) to player for the club in
Singapore Premier League (SPL).
2. Pass the mandatory FAS/SPL medical screening.
3. Pass the mandatory fitness test organised by FAS before the commencement of the SPL
fixtures.
4. Approval of work pass by relevant government authorities.
The terms of the contract shall be as follows:
1. Contract Duration: 1st January 2021 to 31st December 2021
2. Basis monthly salary: SGD 5,800
3. Individual goal bonus: SGD 300 per goal scored
4. Individual goal assist: SGD 200 per goal assisted
[…]
10. Salary shall commence upon approval of work permit”.
2.
The employment offer was signed by the club and countersigned by the player.
3.
Also on 7 December 2020, the parties entered into an employment contract valid as from
1 January 2021 until 31 December 2021 (hereinafter: the employment contract).
4.
Schedule 1, lit a) of the employment contract stated as follows, regarding the player
remuneration:
“a) A gross monthly salary of $5,800; a sum of $ 15% (of the salary) shall be withheld monthly
to meet personal income tax liability where the player is a player from outside jurisdiction (a
foreign player”.
5.
In accordance with the information available in the Transfer Matching System (TMS), the
player would be entitled to a monthly remuneration of Singaporean Dollars (SGD) 5,800,
payable from 1 January 2021 until 31 December 2021.
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6.
On 10 December 2020, the club commenced administrative proceedings before the
competent authorities for the player to be registered and granted a work permit.
7.
On 29 January 2021, the player’s permit (i.e. S Pass) was approved by the Singaporean
government. The player was allowed to enter the country between 18 and 20 February
2021.
8.
On 8 March 2021, the player underwent medical examinations in Singapore.
9.
On 10 March 2021, the player signed extra documents for the conclusion of the procedure
regarding his work permit.
10. On 20 April 2022, the player put the club in default and requested payment of American
Dollars (USD) 11,600 corresponding to his salaries of January and February 2021 (i.e. USD
5,800 each). He granted the club with a 14 days’ deadline to cure the breach.
II. Proceedings before FIFA
11. On 16 May 2022, 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
12. According to the player, the club failed to pay part of its dues. As such, he claimed to be
entitled to USD 11,600 as outstanding remuneration “plus 5% interest until the effective
date of payment”.
13. In addition, the player referred to article 12bis of the FIFA Regulations on the Status and
Transfer of Players (RSTP) and requested sporting sanctions to be imposed on the club.
b. Reply of the club
14. On 30 May 2022, the club filed its reply to the player’s claim and opposed his allegations
as follows.
15. In accordance with the club, the player’s monthly remuneration was stipulated in SGD
instead of USD. It submitted a copy of the employment offer in support of its allegations.
16. Subsequently, the club pointed out that the player’s permit was only approved on 29
January 2021 and argued that no payment should be due for the first month of 2021 (cf.
clause 10 of the employment offer). The club moreover stressed that – following the
bureaucratic proceedings – the player only arrived in Singapore on 20 February 2021 and
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had to quarantine for 14 extra days, following which he still had to undergo medical
examinations. As such, the club concluded that the player did only start rendering
services on 10 March 2021.
17. In light of the above and taking into consideration the national law of Singapore, the club
argued that no salaries were due to the player for January and February 2021 because no
work was performed. Consequently, it requested FIFA to dismiss the claim.
c. Rejoinder of the player
18. On 13 June 2022, the player filed his comments on the club’s reply.
19. Initially, the player confirmed that his salary should be paid in USD (and not SGD, as
maintained by the club). In this regard, the player: (i) argued that his relationship with the
club was regulated by the employment contract and not by the employment offer; and (ii)
referred to the principle of contra proferentem and maintained that any ambiguity should
be interpreted against the club (the drafter).
20. Additionally, the player recalled the content of article 18, par. 4 of the FIFA RSTP and the
jurisprudence of the Dispute Resolution Chamber (DRC) and the Court of Arbitration for
Sport (CAS) on the matter. In doing so, he held that the employment contract entered into
force on 1 January 2021, therefore his remuneration should also be due as from such
date.
21. Lastly, the player reiterated his prayers for relief as per the statement of claim.
d. Final comments of the club
22. On 20 June 2022, the club submitted its final comments on the case at hand.
23. As a departure point, the club argued that the player accepted that his basic monthly
salary would be SGD 5,800 and never raised this issue before. In this regard, the club also
added that the principle of contra proferentem was not applicable to this case because the
employment contract did not foresee any specific currency for the payments, meaning
that the player had only chosen USD to “inflate” his claim. Consequently, the club
maintained that the player’s claim in this respect “cannot be substantiated at all”.
24. As to the commencement of the work and date of salary, the club outlined that the player
was already aware and in agreement with the precedent conditions (cf. employment
offer). Moreover, the club stated that: (i) “it is also common knowledge and/or practice that
an employer would only pay its employees their salaries after they commence employment”;
and (ii) the player had never complained about the outstanding salaries for the whole year
that he remained bounded to the club.
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25. Finally and specifically regarding the work permit, the club once again referred to the
Singaporean law and claimed that the employment offer and the employment contract
should be read together, hence being unequivocal that the player would only be entitled
to his salaries after the approval of his work permit. The club also outlined that the
player’s position according to which it failed to adopt the necessary formalities on time
was “ridiculous”.
26. Based on the above, the club insisted that the player’s claim should be rejected.
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
27. First of all, the Single Judge of the Dispute Resolution Chamber (hereinafter also referred
to as Single Judge) analysed whether she was competent to deal with the case at hand. In
this respect, she took note that the present matter was presented to FIFA on 16 May 2022
and submitted for decision on 20 July 2022. Taking into account the wording of art. 34 of
the June 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.
28. 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 FIFA RSTP (July 2022), 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 Brazilian player and a Singaporean club.
29. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, she confirmed that, in accordance with art. 26
par. 1 and 2 of the FIFA RSTP (July 2022 edition), and considering that the present claim
was lodged on 16 May 2022, the March 2022 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
30. 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 she may
consider evidence not filed by the parties, including without limitation the evidence
generated by or within the TMS.
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c. Merits of the dispute
31. 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 she will refer only to the facts, arguments and documentary evidence,
which she considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
32. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that it pertains to a claim for overdue payables lodged
by the player against the club in connection with the employment contract concluded on
7 December 2020.
33. It remained undisputed between the parties that the player’s salaries of January and
February 2021 were not paid by the club, however the parties dispute whether such
concepts were indeed due and the consequences that follow.
34. In this context, the Single Judge acknowledged that her task was to rule on the following:
a.
Shall the player’s salary be fixed in USD or in SGD?
b.
As from when the player was entitled to receive his salaries? Is there any
outstanding amount?
35. The Single Judge then moved to the analysis of each matter in turn.
1. Shall the player’s salary be fixed in USD or in SGD?
36. First and foremost, the Single Judge noted that the player claimed to be entitled to a
monthly remuneration of USD 5,800 but the club argued that such amount was due in
SGD.
37. In view of this dissent between the parties, the Single Judge acknowledged that none of
them provided evidence of the amount paid during the remaining period of the
employment contract. Consequently, the Single Judge considered that the controversy
should be entertained taking into consideration the other elements of the case file.
38. On this note, the Single Judge observed that, whereas the player based his allegations
exclusively on the unclear wording of the employment contract, the club filed a copy of
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the employment offer which expressly reads that the player’s entitlements would be paid
in national currency. What is more, the Single Judge gave particular weight to the fact that
such employment offer was signed by the player on the same date as the employment
contract and he did not advance any evidence that they had amended the payment
conditions in the meanwhile. In parallel, the Single Judge was also observant that no
controversy was raised by neither of the parties during the term of their employment
relationship, which lasted for a whole year.
39. Coherently, the Single Judge also noted that the club correctly indicated in the TMS that
the player’s remuneration was payable in SGD and not USD.
40. Consequently, the Single Judge determined that the factual circumstances of the case
corroborated with the club’s argumentation. On the contrary, she highlighted that, by not
filing any evidence in support of his argumentation, the player could not meet his burden
of proof to demonstrate that he should be entitled to payment in USD.
41. Therefore, the Single Judge decided that the player should be entitled to a monthly
remuneration of SGD 5,800.
2. As from when the player was entitled to receive his salaries?
Is there any outstanding amount?
42. Having established the above, the Single Judge turned to the analysis of the club’s liability
regarding the salaries of January and February 2021.
43. In this respect, she firstly deemed noteworthy that – as opposed to the argumentation of
the club – the employment contract was signed after the employment offer, therefore
consolidating its terms and conditions; and it does not foresee any precedent condition
for the payment of salaries, such as the issuance of the player’s working permit. Had that
been the case, the validity of said condition would still have to be analysed in light of the
content of art. 18, par. 4 of the Regulations and the jurisprudence of the Football Tribunal
on the matter.
44. The Single Judge did not fail to notice either that the wording of the employment contract
is clear and unequivocal to establish that it enters into force on 1 January 2021, entailing
that as from this moment the duties and rights therein stipulated are valid and binding
to the parties – including, in the Single Judge’s view, the club’s duty to fulfil its financial
obligations. Likewise, in case the parties intended to condition any contractual duty to a
future event, they should have done so in written.
45. Additionally, the Single Judge outlined that in accordance with the long-standing
jurisprudence of the DRC, as a general rule, clubs shall be liable to take all necessary
administrative action to ensure that that a player’s permit is granted (or renewed),
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allowing him to render the services under the employment contract. In this respect, the
Single Judge was of the opinion that the delay between the date the employment contract
entered into force and the date when the services started to be rendered cannot be
attributable to the player.
46. Consequently, the Single Judge decided that the player should be entitled to receive his
salaries for the months of January and February 2021 on the basis of the general legal
principle of pacta sunt servanda.
47. Finally, the Single Judge wished to clarify that the player would also be in principle entitled
to default interest over the outstanding salaries as from the respective due dates until
the date of effective payment. However, taking into consideration that his request was
not specified in this regard, the Single Judge decided that he shall be awarded interest as
from the date of the claim (i.e. 16 May 2022) in line with the principle of ne ultra petita.
ii. Article 12bis of the Regulations
48. 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.
49. 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.
50. 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.
51. 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.
52. 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.
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iii. Compliance with monetary decisions
53. 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.
54. 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.
55. 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.
56. 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.
57. 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
58. 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.
59. 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.
60. 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, Fortunato Gilberto Valdenesio, is partially accepted.
2.
The Respondent, Hougang United Football Club, has to pay to the Claimant, the following
amount(s):
- SGD 11,600 as outstanding remuneration plus 5% interest p.a. as from 16 May 2022 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.
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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