DRC Overdue Payables
Texto da decisão
REF FPSD-4538
Decision of the
Dispute Resolution Chamber
passed on 23 February 2022
regarding an employment-related dispute concerning the player Pavel Čmovš
BY:
Johan VAN GAALEN (South Africa), DRC Judge
CLAIMANT:
Pavel Čmovš, Czech Republic
Represented by Ms Markéta Vochoska Haindlová
RESPONDENT:
Nea Salamina Famagusta, Cyprus
Represented by Mr George T. Christofides
REF FPSD-4538
I. Facts
1. On 1 August 2020, the player Pavel Čmovš and Nea Salamina Famagusta concluded an employment
agreement.
2. According to art. 1 par. 3 of the contract, the player was entitled to a gross salary of EUR 5,556 (EUR
5,000 net), payable in 10 equal monthly instalments of EUR 500 net, starting from 31 August 2020.
3. Simultaneously and on the same date, the parties concluded an “Image rights contract”.
4. According to Exhibit 1 to the image rights contract, the player was entitled to the following:
5. On 9 November 2021, the club sent an email to “Giorgio Nicolau”, indicating the following (note:
letter provided by the club:
“As you have been informed, the Club's Board in its meeting yesterday (27/05/21 ), decided to impose
a financial penalty on the grounds of your bad performance which resulted in the relegation of the
club to the second division, consequently , the Club will suffer financial damages but damages as to
its reputation that amount to 1 million euro.
Your offer submitted by the Club's technical director for a financial penalty for May's salary of 30%,
was not accepted.
Thus, the club will continue to enforce its decision imposing 55% of your remuneration . People who
receive less than 1000 euro will not be fined because of survival reasons.
Whoever objects to such decision is kindly requested to attend at a meeting tomorrow at the club's
offices (29/5/21) between 09:30 and 11 :00. It is provided that anyone not attending will be
considered as accepting the above.”
6. On 26 October 2021, the player, via his legal representative, sent a default notice indicating the
following:
“As per the Article 1, par. 1.3, point i. of the Employment Contract and EXHIBIT 1 of the Contract,
the Club is obliged to pay the Player the following amounts as fixed monthly instalments:
(i)
amount of EUR 500 net;
(ii)
amount of EUR 5,900 net.
Therefore, making it a total amount of EUR 6,400 net payable to the Player every month of the fixed
term in accordance with the Employment Contract and the Contract.
Nevertheless, for the month of May 2021 the Player received only the amount of EUR 2,880 net.
(…)
In accordance with Article 12 bis. par. 3 of the FIFA RSTP, the Club has 10 days to pay from the
delivery of this reminder.”
REF FPSD-4538
7. On 13 December 2021, Pavel Čmovš lodged a claim before FIFA for outstanding remuneration and
requested the amount of EUR 3,520 net, corresponding to the rest of the salary of May 2021, plus
5% interest p.a. as from 1 June 2021.
8. In its reply to the claim, the club argued that it complied with all of its financial obligations.
9. In this respect, the club argued that, due to its relegation, it imposed a fine to all players for bad
performance.
10. In particular, the club explained that the fine consisted in 55% of the overall remuneration
regarding the salary of May 2021.
11. The club explained that the decision to impose a fine was disclose via a Whatsapp message sent to
a group where all the players were members.
12. In his replica, the Claimant argued that he was unaware of any sanction and that the imposition of a
fine by way of an email and, consequently, by way of a WhatsApp message is, in general, totally
inadequate.
13. In addition, the Claimant argued that that the Club absolutely failed to prove any alleged breach of
Contract on the side of the Player, as no relevant evidence has been submitted by the Club in this
context.
14. As final comments, the club insisted that the fine of the email “was sent to the address
[email protected], which is the address given by the Claimant to the Club for exchanging
communications.”
15. As to the fine, the club underlined that “it was imposed due to the relegation to the second division.”
REF FPSD-4538
II Considerations of the Dispute Resolution Chamber
a. Competence and applicable legal framework
1. First of all, the Dispute Resolution Chamber (DRC) Judge (hereinafter also referred to as Single Judge
or Judge) analysed whether he was competent to deal with the case at hand. In this respect, it took
note that the present matter was presented to FIFA on 13 December 2021 and submitted for decision
on 23 February 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.
2. Subsequently, the members of the Chamber 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 lit. b) of the Regulations
on the Status and Transfer of Players (August 2021 edition), 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 Czech player and a Cypriot club.
3. Subsequently, the Chamber analysed which regulations should be applicable as to the substance of
the matter. In this respect, it 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 13 December 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
4. The Chamber 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 Chamber 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
5. 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.
i. Main legal discussion and considerations
6. In this Respect, the DRC Judge noted that, on 1 August 2020, the parties concluded an employment
contract and that, according to its art. 1 par. 3, the player was entitled to a gross salary of EUR 5,556
REF FPSD-4538
(EUR 5,000 net), payable in 10 equal monthly instalments of EUR 500 net, starting from 31 August
2020, as well as an “image rights contract”, according to which the player was entitled to a monthly
remuneration of EUR 5,900 net. In this respect, the DRC Judge wished to underline that, despite said
formal naming, such “image rights contract” is to be considered as an integral part of the
employment relationship existing between the parties, in accordance with the jurisprudence of the
DRC for comparable situations.
7. Subsequently, the DRC Judge observed that the player lodged a claim before FIFA for outstanding
remuneration and requested the amount of EUR 3,520 net, corresponding to the rest of the salary
of May 2021
8. On the other hand, the DRC Judge took note of the position of the club, according to which it
complied with all of its financial obligations. In addition, the Judge observed that the the club
explained that the fine consisted in 55% of the overall remuneration regarding the salary of May
2021 due to its relegation.
9. In view of the above, the DRC Judge understood that the main legal issue at stake is to determine
whether the club was entitled to impose the aforementioned fine.
10. In this regard, the DRC Judge referred to the longstanding jurisprudence of the DRC for similar
matters and concluded that the fine invoked by the club appears to be arbitrary in nature, and the
player was not granted any due process in this regard.
11. Moreover, and regardless of any other consideration, the DRC Judge considered that the club could
have contractually foreseen the economic effects of a possible relegation, instead of unilaterally
imposing a fine.
ii. Consequences
12. In view of the above, the DRC Judge considered that the player is entitled to his monthly salary of
May 2021 in full, while noted that the player requested the remaining amount of EUR 3,520 for said
period.
13. Consequently, in strict application of the principle of pacta sunt servanda, the DRC Judge established
that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 3,520, as
agreed in the contract and as detailed above.
iii. Compliance with monetary decisions
14. 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.
REF FPSD-4538
15. 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.
16. 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.
17. 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 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. of the Regulations.
18. 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.
19. 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.
20. 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.
21. 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 creditor, 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.
22. The club shall make full payment (including all applicable interest) to the bank account provided by
the player in the Bank Account Registration Form.
23. 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 of the Regulations.
d. Costs
REF FPSD-4538
24. 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.
25. 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.
26. Lastly, the Single Judge concluded its deliberations by rejecting any other requests for relief made by
any of the parties.
REF FPSD-4538
III Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Pavel Čmovš, is accepted.
2.
The Respondent, Nea Salamina Famagusta, has to pay to the Claimant, the amount of EUR 3,520
net, plus 5% interest p.a. as from 1 June 2021 until the date of effective payment.
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
Pursuant to art. 24 of the Regulations on the Status and Transfer of Players (August 2021 edition),
if full payment (including all applicable interest) is not made within 45 days of notification of this
decision, the following consequences shall apply:
1.
2.
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.
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.
5.
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.
6.
A warning (art. 12 bis of the Regulations) is imposed on the Respondent.
7.
This decision is rendered without costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
REF FPSD-4538
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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