DRC Overdue Payables
Texto da decisão
REF FPSD-4142
Decision of the
Dispute Resolution Chamber
passed on 4 May 2022
regarding an employment-related dispute concerning the player Tomas
Wagner
BY:
Stella Maris Juncos (Argentina), Single Judge of the DRC
CLAIMANT:
Tomas Wagner, Czech Republic
Represented by Markéta Vochoska Haindlová
RESPONDENT:
Nea Salamina Famagusta, Cyprus
Represented by George Christofides
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I.
Facts of the case
1.
On 10 August 2020, the Czech player, Tomas Wagner (hereinafter: Claimant or player) and
the Cypriot club, Nea Salamina Famagusta (hereinafter: Respondent or club) concluded an
employment contract (hereinafter: contract) valid as from the date of signature until 31 May
2021.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of EUR 500 net.
3.
On 10 August 2020, the parties also concluded a separate agreement titled “Image rights
contract” (hereinafter: agreement) valid for the same duration as the contract. The agreement
refers to the contract several times.
4.
According to the agreement, under the title “salaries of the football player”, the Respondent
undertook to pay the Claimant a total amount of EUR 67,500 net, paid in 10 instalments of
EUR 6,750 net.
5.
The agreement contains the following clauses:
“4. Moreover, the club is obligated to provide for the player up to €500/month NET
for accommodation, for each year of employment”;
“5. Moreover, the club is obligated to provide for the player up to €300/month NET
for car, for his own use, each year of employment”;
“6. Moreover, the club is obligated to provide for the player 2 air tickets for his
country, for each year of employment”;
“7. The club will pay the player as bonus the NET amount of 5,000€ (five thousand
euro), if the player has 10 goal/assists in the official games of the Championship of
the football season 2020/2021”;
“8. The club will pay to the player as bonus the NET amount of 1,000€ (one
thousand euro) for every extra goal/assist (11 and more) in the official games of
football season 2020-2021.”
“15. The club will pay to the Player as bonus the NET amount of 5,000€ (five
thousand euro) if the player plays for over 45 played minutes in at least 23 games
of the Championship of the football season 2020-2021”.
6.
On 30 April 2021, the player signed a document titled “Certification of Club’s Payment of
Amounts due to is Employees”, which, inter alia, reads “I Thomas Wagner certify that Nea
Salamina Famagusta has paid in full all of its financial obligations arising under the contract
between the said club and myself for the football season 2020/2021 up to 30 April 2021”.
7.
On 8 October 2021, the Claimant put the Respondent in default and requested payment of
EUR 21,000, corresponding to the outstanding bonuses, within 10 days.
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II. Proceedings before FIFA
8.
On 29 October 2021, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
9.
In his claim, the Claimant requested outstanding bonuses in the amount of EUR 21,000, as
follows:
10. In this context, the player held that the club failed to remit the bonus payments arising from
art. 7, 8 and 15 of the agreement, since he scored 17 goals and provided 4 assists, while
playing for more than 45 minutes on 24 occasions (The first 10 goals/assists entitle the player
to received EUR 5,000, every following goal/assist to EUR 1,000; 11x EUR 1,000; plus EUR
5,000 from the appearances).
b. Position of the Respondent
11. In its reply, the Respondent rejected the player’s claim and argued having fully complied with
its financial obligations.
12. The club argued that the player confirmed having received all of his money in the document
signed on 30 April 2021.
13. In this regard, the club maintained that it was relegated at the end of the season 2020/2021
and that it therefore “imposed a fine to all the players of the club for their bad performance”
in the amount of 55% of the overall remuneration. Such “fine” was communicated to the
player via email on 28 May 2021.
14. Furthermore, the club pointed out that it remitted an amount of EUR 7,200 to the player on
10 June 2021, allegedly corresponding to his “salary and bonuses” after the deduction of the
fine.
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15. The club argued that the player “implicitly accepted the said settlement”, since he started
negotiating a contract extension.
16. Alternatively, the club held that its debt amounts to “EUR 3,760 and not EUR 21,000”, since
the part of EUR 3,240 out of the payment of EUR 7,200 corresponds to the claimed bonuses.
c. Replica of the Claimant
17. In his replica, the player reiterated his position.
18. Regarding the document dated 30 April 2021, the player argued that said document only
relates to the financial debt arising from the contract and not to the agreement.
19. In this context, the player held that the bonuses related to the agreement, amounting to EUR
14,000 until 30 April 2021, remained unpaid and are therefore, still due.
20. Furthermore, the player held that no “penalty was imposed on him personally” and that the
Respondent failed to submit evidence that he was informed of such alleged fine, since no
delivery report of the email was presented.
21. Moreover, the Claimant held that such fine was definitely not lawfully imposed, if at all.
Therefore, it has to be disregarded.
22. As to the payment dated 10 June 2021, the player confirmed having received the amount of
EUR 6,700 on said day and the amount of EUR 500 already on 31 May 2021. Those amounts
correspond to his salary arising from the contract and the agreement and are not related to
the bonuses claimed at all.
23. The player further pointed out that the numbers presented by the Respondent do not add up
as the alleged deduction of 55% does not correspond to the alleged part of the bonuses that
was paid (i.e. EUR 3,240).
d. Duplica of the Respondent
24. In its duplica, the club reiterated its position.
25. The club pointed out that player did not protest against the fine until he issued a default
notice and therefore accepted it.
26. Moreover, in relation to the document dated 30 April 2021, the club held that the player is
“estopped by conduct to ask for his bonuses several months after the conclusion of the
employment relationship”.
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III. Considerations of the Single Judge of the DRC
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 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 29 October 2021 and
submitted for decision on 4 May 2022. 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.
28. 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 (March 2022 edition),
she is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Czech player and a Cypriot club.
29. In continuation, with regard to the claimed payments in connection to the contract and the
agreement apparently signed by the parties, the Single Judge also had to verify whether, for
formal reasons, if she was competent to deal with this specific component or not. In fact it
remains that this part of the claim could possibly not be considered due to the Single Judge
lacking competence to deal with disputes related to image rights.
30. While analysing whether she was competent to hear this part of the claim, the Single Judge
wished to highlight that the agreement contained elements which led to believe that it was
not in fact an image rights agreement but rather a separate agreement to the employment
contract, i.e. directly linked to the services of the Claimant as a player.
31. As a general rule, if there are separate agreements, the DRC tends to consider the agreement
on image rights as such and does not have the competence to deal with it. However, such
conclusion might be different if specific elements of the separate agreement suggest that it
was in fact meant to be part of the actual employment relationship. In the case at hand, such
elements appear to exist. In particular, the agreements contain inter alia stipulations regarding
a monthly salary and bonuses, which are typical for employment contracts and not for image
rights agreements. Consequently, the Single Judge decided not to consider the image rights
agreement as such, but determined that the agreement was in fact an additional agreement
to the employment contract instead.
32. In view of all the above, the Single Judge established that the agreement is to be considered,
meaning that she is in a position to take it into consideration the agreement when assessing
the Claimant’s claim.
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33. 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 (March 2022 edition), and
considering that the present claim was lodged on 29 October 2021, the August 2021 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the
substance.
b. Burden of proof
34. 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 it 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
35. Her 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 it will refer only to the facts, arguments and documentary evidence, which it
considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
36. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the parties strongly dispute the payment of certain
financial obligations by the Respondent.
37. In this context, the Single Judge acknowledged that her task was to determine, based on the
evidence presented by the parties, whether the claimed amounts had in fact remained unpaid
by the Respondent and, if so, whether the latter had a valid justification for not having
complied with its financial obligations.
38. The Single Judge first noted that the Claimant’s entitlement to the bonuses claimed as such
remained uncontested by the Respondent. In this regard, the Single Judge pointed out that
the claim was substantiated and that the one assist that does not appear in the submitted
statistics, but was supported by video evidence, remained uncontested.
39. However, the Single Judge noted that the Respondent held having complied with its financial
obligations due the alleged waiver dated 30 April 2021 and the alleged fine imposed on the
player.
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40. The Single Judge moved on to analyse the content of the alleged waiver dated 30 April 2021
and noted the Claimant’s argument that such document was only related to the payments of
the contract and does not apply to the bonuses arising from the agreement. In this regard,
the Single Judge pointed out that this argument remained uncontested in the Respondent’s
duplica.
41. In general, the Single Judge maintained that the declaration is dated one month before the
contractual relationship effectively ended and therefore appears not to cover the total
amounts due to the player. Also the fact, that the club undisputedly remitted certain
payments after the date of this document does not seem to support the club’s argument of
a valid waiver. For all these reasons, the Single Judge decided to disregard the document.
42. Regarding the alleged fines imposed on the player for alleged bad performance, the Single
Judge wished to emphasize that there is no evidence on file, that a due disciplinary process
was followed by the club and that the player’s right to be heard was respected. What is more,
it appears questionable if a fine for bad performance could even be imposed.
43. Furthermore, and irrespective of the foregoing consideration, the Single Judge wished to
point out that the imposition of a fine, or any other available financial sanction in general,
shall not be used by clubs as a means to set off outstanding financial obligations towards
players. Consequently, the Single Judge decided to reject the Respondent’s argument in this
connection.
44. As a conclusion, since the club failed to proof that it had remitted the claimed amounts to
the player, since the payment dated 10 June 2021 (partially 31 May 2021) of EUR 7,200
appears to have been in relation to the salary and not the bonus in question, the Single Judge
decided that the player is entitled to the bonuses claimed.
ii. Consequences
45. In view of the foregoing 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
agreement concluded between the parties, namely EUR 21,000.
46. Lastly, taking into consideration the player’s request as well as the constant practice of the
Chamber in this regard, the latter decided to award the player interest at the rate of 5% p.a.
as of the respective due dates until the date of effective payment.
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iii. Compliance with monetary decisions
47. 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.
48. 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.
49. 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.
50. The Single Judge 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 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.
51. 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.
52. 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.
53. 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.
54. 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.
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55. 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.
56. 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
57. 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.
58. Likewise and for the sake of completeness, the Single Judge ecalled 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 Single Judge of the DRC
1.
The claim of the Claimant, Tomas Wagner, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Nea Salamina Famagusta, has to pay to the Claimant, the following
amount(s):
- EUR 5,000 as outstanding remuneration plus 5% interest p.a. as from 25 January 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 15 February 2021
until the date of effective payment;
- EUR 2,000 as outstanding remuneration plus 5% interest p.a. as from 20 January 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 8 March 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 5 April 2021 until the
date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 20 April 2021 until
the date of effective payment;
- EUR 3,000 as outstanding remuneration plus 5% interest p.a. as from 25 April 2021 until
the date of effective payment;
- EUR 6,000 as outstanding remuneration plus 5% interest p.a. as from 26 May 2021 until
the date of effective payment;
- EUR 1,000 as outstanding remuneration plus 5% interest p.a. as from 29 May 2021 until
the date of effective payment.
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.
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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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