F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 21 October 2020

Decision of the

DRC Judge

passed on 21 October 2020,

regarding an employment-related dispute concerning the player Sylvano Dominique Comvalius

BY:

Daan de Jong (Netherlands), DRC Judge

CLAIMANT:

Sylvano Dominique Comvalius

Represented by Mr Menno Teunissen

RESPONDENT:

Kuala Lumpur Football Association

I. FACTS OF THE CASE

1. On 3 December 2018, the Dutch player, Sylvano Dominique Comvalius (hereinafter: Claimant or player) and the Malaysian clubm Kuala Lumpur FA (hereinafter: Respondent or club) concluded an employment contract (hereinafter: contract) valid as from 1 December 2018 until 30 November 2019.

2. According to the contract, the Respondent undertook to pay the Claimant a monthly salary of USD 9,858.

3. On 23 April 2019, the parties signed a termination agreement, according to which the Respondent agreed to pay the Claimant the amount of USD 14,787 “on the end of August 2019”.

4. On 17 December 2019, the Claimant put the Respondent in default and requested payment of USD 9,858, resulting from the termination agreement, within 7 days.

5. On 10 September 2020, the Claimant sent another default notice to the Respondent, requesting payment of USD 10,366.17, corresponding to the outstanding amount of USD 9,858 plus 5% interest p.a., within 10 days.

6. On 14 October 2020, the Claimant lodged a claim against the Respondent in front of FIFA and requested outstanding remuneration in the amount of USD 9,858 plus 5% interest p.a..

7. In his claim, the player argued that after the conclusion of the termination agreement, the club only paid the amount of USD 4,929 and failed to remit the amount of USD 9,858.

8. Furthermore, the Claimant held that the Respondent did not react to his default notices.

9. The Respondent failed to present its response to the claim of the player, in spite of having been invited to do so.

II. CONSIDERATIONS OF THE DRC JUDGE

1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as DRC judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 14 October 2020 and submitted for decision on 9 December 2020. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, DRC judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition October 2020), he is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player and club.

3. Furthermore, the DRC judge 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 Player (edition October 2020), and considering that the present claim was lodged on 14 October 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the DRC judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the DRC 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. In particular, the DRC judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having said this, the Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. First of all, the members of the Chamber acknowledged that, on 3 December 2018, the player and the club had concluded an employment contract valid as from 1 December 2019 until 30 November 2019, which was terminated by signing a termination agreement on 23 April 2019. The DRC judge noted that therein the Respondent undertook to pay the Claimant the amount of USD 14,787 “until the end of August 2019”.

7. In this context, the DRC judge took note of the player’s claim maintaining that the club failed to remit the amount of USD 9,858, resulting from the termination agreement.

8. The DRC judge further observed that the Claimant put the Respondent in default on 10 September 2020, requesting payment of USD 9,858 plus interest within 10 days.

9. 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, the DRC judge considered that the Respondent renounced its right of defence and, thus, accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 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.

11. Having said this, the DRC judge acknowledged that, in accordance with the termination agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of USD 14,787 until 31 August 2019, from which the amount of USD 9,858 remained outstanding.

12. Taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had substantiated his claim pertaining to the outstanding remuneration with sufficient documentary evidence.

13. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 9,858.

14. In addition, the DRC judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

15. Consequently, the DRC judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the total amount of USD 9,858.

16. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 9,858 as from 1 September 2019.

17. In continuation, taking into account the consideration under number II./14. above, the DRC 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.

18. The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Due to the absence of the circumstance of repeated offence, the DRC judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

19. In this connection, the DRC judge wished to highlight 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.

20. Furthermore, taking into account the consideration under number II./3. above, the DRC judge referred to par. 1 and 2 of art. 24bis 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.

21. In this regard, the DRC judge pointed out 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 and for the maximum duration of three entire and consecutive registration periods.

22. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

23. Finally, the DRC 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. 24bis par. 3 of the Regulations.

III. DECISION OF THE DRC JUDGE

1. The claim of the Claimant, Mr Sylvano Dominique Comvalius, is accepted.

2. The Respondent, Kuala Lumpur Football Association, has to pay to the Claimant, the following amount:

- USD 9,858 as outstanding remuneration plus 5% interest p.a. as from 1 September 2019 until the date of effective payment.

3. A warning is imposed on the Respondent.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the DRC judge:

Emilio García Silvero

Chief Legal & Compliance Officer

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

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