DRC Overdue Payables
Texto da decisão
REF. FPSD-14597
Decision of the
Dispute Resolution Chamber
passed on 25 June 2024
regarding an employment-related dispute concerning
the player Alves Feitosa Weslley Smith
BY:
Andre DOS SANTOS MEGALE (Brazil), Single Judge of the DRC
CLAIMANT:
Alves Feitosa Weslley Smith, Brazil
Represented by Rafael Meirelles Gomes de Ávila
RESPONDENT:
Jiangxi Lushan FC, China PR
pg. 2
REF. FPSD-14597
I. Facts of the case
1.
On 1 November 2022, the Brazilian player, Alves Feitosa Weslley Smith (hereinafter:
Claimant or player) and the Chinese club, Jiangxi Lushan FC (hereinafter: club or Respondent)
concluded an employment contract (hereinafter: contract) valid as from 1 January 2023
until 31 December 2023.
2.
According to the contract, the Respondent undertook to pay the Claimant a monthly salary
of USD 7,000.
3.
On 19 April 2024, the Claimant put the Respondent in default and requested payment of
USD 14,000, corresponding to the salaries of November and December 2023, setting a 15
days’ time limit in order to remedy the default.
II. Proceedings before FIFA
4.
On 10 May 2024, 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
5.
In his claim, the Claimant requested payment of the following monies:
- EUR 14,000 as outstanding remuneration (salaries of November and December
2023), plus 5% interest p.a. as of the due dates;
- EUR 14,000 as “penalty for breach of contract”
- Alternatively, if no penalty is awarded, legal costs of “30% of the outstanding
amounts”.
6.
In his claim, the player argued that his salaries remained outstanding even after his default
notice.
7.
The player held that he is entitled to the penalty for breach of contract and legal costs.
b. Position of the Respondent
8.
The Respondent failed to reply to the claim.
pg. 3
REF. FPSD-14597
III. Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
9.
First of all, the Single Judge (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 10 May 2024 and submitted for decision on 25
June 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.
10. 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 (June 2024), he
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player and a club.
11. 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 (June 2024 edition), and
considering that the present claim was lodged on 10 May 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
12. 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
13. 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 it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
pg. 4
REF. FPSD-14597
i. Main legal discussion and considerations
14. The foregoing having been established, the Single Judge moved to the substance of the
matter, and took note of the fact that the matter at hand concerns a claim of a player
against a club for outstanding remuneration.
15. In this context, the Single Judge acknowledged that his task was to decide if the player is
entitled to the claimed amounts.
16. The Single Judge noted that according to the player, the club failed to remit his salaries for
November 2023 and December 2023.
17. The Respondent, 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, the Single Judge considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of the
Claimant.
18. Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concurred that in accordance with art. 21 par. 1 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
19. It has to be noted that in the case at hand the Respondent bore the burden of proving that
it indeed complied with the financial terms of the contract concluded between the parties.
20. As a consequence, and in accordance with the general legal principle of pacta sunt servanda,
the Single Judge decided to award the player the following monies:
- USD 7,000 as outstanding remuneration plus 5% interest per annum as from 1
December 2023 date until the date of effective payment;
- USD 7,000 as outstanding remuneration plus 5% interest per annum as from 1
January 2024 date until the date of effective payment.
21. The Single Judge further maintained that the player’s request for a “penalty for breach of
contract” has to be rejected as there was no breach of contract.
22. In accordance with the Chamber’s longstanding jurisprudence and the Procedural Rules,
the Single Judge decided that no legal costs are awarded.
23. 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.
pg. 5
REF. FPSD-14597
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 more than 30 days before, and granted the
club a 10-day deadline to cure such breach of contract.
25. 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.
26. 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 and bearing in
mind that this is the third offense by the club within the last two years, the Single Judge
decided to impose a fine on the club in accordance with art. 12bis par. 4 lit. c) 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 a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
ii. 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 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.
31. 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.
pg. 6
REF. FPSD-14597
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.
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 Chamber 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.
35. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 7
REF. FPSD-14597
IV. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Alves Feitosa Weslley Smith, is partially accepted.
2.
The Respondent, Jiangxi Lushan FC, must pay to the Claimant the following amount(s):
- USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 December
2023 until the date of effective payment;
- USD 7,000 as outstanding remuneration plus 5% interest p.a. as from 1 January 2024
until the date of effective payment.
3.
Any further claims of the Claimant are rejected.
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 art. 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.
A fine in the amount of USD 2,000 is imposed on the Respondent, which must be paid to
FIFA within 30 days of notification of this decision. Such fine must be paid to the
following bank account with a clear reference to the case FPSD-14597:
UBS Zurich
Account number 230-366677.61N (FIFA Players’ Status)
Clearing number 230
IBAN: CH12 0023 0230 3666 7761 N
SWIFT: UBSWCHZH80A
For the Football Tribunal:
8.
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 8
REF. FPSD-14597
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
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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