F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 5 May 2020
Decis ion of the
Dis pute Res olution Chamber (DRC) judge
passed on 5 May 2020,
by
Pavel Pivovarov , (Russia)
Dispute Resolution Chamber (DRC) judge
on the claim presented by the player,
Moses Orkuma, Nigeria
Represented by Mr Alexis Schoeb and Miceal Totaro
as Claimant
and the club,
Club Stade Gabes ien, Tunisia
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I. Facts of the case
1. On an unspecified date, the Nigerian player, Moses Orkuma (hereinafter: “the player” or
“the Claimant”) and the Tunisian club, Stade Gabesien (hereinafter: “the club” or “the
Respondent”) concluded an employment contract, valid as from 15 July 2017 until 30 June
2019.
2. According to article III of the employment contract the player was entitled to receive from
the club the following remuneration:
Net monthly salary (including house rental):
Tunisian Dinars (TND) 5,500 for the season 2017/2018 and
TND 6,000 for the season 2018/2019.
Performance bonuses:
TND 100,000 for the season 2017/2018 payable as follows: -TND 50,000 on the date of
signature of the employment contract; -TND 25,000 in December 2017 and –TND
25,000 in March 2018;
TND 120,000 for the 2018/2019 season payable as follows: -TND 60,000 on 1 August
2018; -TND 30,000 in December 2018 and -TND 30,000 in March 2019.
3. On 18 September 2019, on 1 October 2019 and on 5 November 2019, the player put the
club in default of payment of the amount of TND 170,500 as outstanding remuneration,
granting it a 10-day deadline to remedy the default, however to no avail.
4. On 23 December 2019, the Claimant lodged the present claim against the Respondent
requesting the following:
1) to condemn the Respondent to the payment of TND 170,500 as overdue payables plus
5% annual interest from 1 July 2019 until the date of effective payment;
2) to sanction the Respondent in a way that the Dispute Resolution Chamber deems
appropriate and decide on the consequences imposed on the club in case it fails to pay
the relevant amounts in due time and
3) to rule that the procedural costs should be paid by the Respondent.
5. In particular, the player argued that the club should have paid him the total amount of
TND 355,250 (i.e. a bonus of TND 100,000 for the 2017/2018 season + TND 120,000 as
bonus for the 2018/2019 season + 11.5 salaries à TND 5,500 for the 2017/2018 season (TND
63,250) + 12 salaries à TND 6,000 (TND 72,000) for the 2018/2019 season). However, upon
expiry of the contract he had only received the total amount of TND 184,750, in irregular
payments.
6. In its reply, the Respondent claimed that part of the player’s claim was time barred, as in
accordance with the Regulations of the Tunisian Football Federation (TFF), the deadline
to claim outstanding dues is 6 months, not 2 years.
7. Moreover, the Respondent argued that based on the Regulations of the TFF:
1) the bonuses were payable pro rata in relation to the participation of the player in the
matches and
2) 5% of the amounts due to the player can be retained by the club for the solidarity fund
of the Federation.
8. Furthermore, the Respondent confirmed that some amounts claimed by the player were
indeed not paid to him, and that the final amount due to the Claimant is TND
120,490.384, broken down as follows:
1) TND 34,615.384, remaining part of the performance bonus for the season 2017/2018;
2) TND 27,500, remaining part of the salary related to the season 2017/2018;
3) TND 47,000, remaining part of the performance bonus for the season 2018/2019;
4) TND 18,000, remaining part of the salary related to the season 2018/2019;
5) Reduction of -TND 6,625 as 5% in accordance with “art. 57bis RFP of the FTF”.
II. Cons iderations of the Dispute Resolution Chamber (DRC) judge
1. First of all, the DRC judge analysed whether he was competent to deal with the matter
at hand. In this respect, he took note that the present matter was submitted to FIFA on
23 December 2019. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2019; hereinafter: “the
Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2. Subsequently, the 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 March 2020) he
is competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a Nigerian player and a Tunisian club.
3. Furthermore, the DRC 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 par. 2 of the Regulations on the Status and Transfer of Players (edition March 2020),
and considering that the present claim was lodged on 23 December 2019, the October
2019 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 on file. However, the DRC 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.
5. To start with, the DRC judge took note of the Respondent´s argument, according to which
part of the Claimant´s requests for remuneration were barred by the statute of limitations
since, allegedly, based on the Regulations of the Tunisian Football Federation (TFF) the
delay to claim any outstanding dues was 6 months.
6. In this regard, the DRC judge reiterated that the regulations which were applicable as to
the substance of this matter were the FIFA Regulations on the Status and Transfer of
Players, edition March 2020 (cf. point II.3 above) and not the TFF´s regulations.
Player Moses Orkuma, Nigeria / Club Stade Gabesien, Tunisia 2
7. In this context, the DRC judge referred to art. 25 par. 5 of the Regulations, which
stipulates, inter alia, that the FIFA deciding bodies shall not hear any case subject to the
said Regulations if more than two years have elapsed since the event giving rise to the
dispute.
8. With the above in mind, the DRC judge underlined that on 23 December 2019 the
Claimant lodged the present claim in front of FIFA´s deciding bodies based on the
employment contract which was valid from 15 July 2017 until 30 June 2019 for alleged
lack of payment of remuneration.
9. Having said this, the DRC judge acknowledged that the Claimant and the Respondent
were bound by the employment contract in accordance with which the Claimant was
entitled to receive in the sporting season 2017/2018 a monthly salary amounting to TND
5,500 and a performance bonus amounting to TND 100,000, and in the sporting season
2018/2019 a monthly salary amounting to TND 6,000 and a performance bonus
amounting to TND 120,000. In addition, the DRC judge took into account that the
Claimant confirmed having received from the Respondent the total amount of TND
184,750 as remuneration.
10. Moreover, the DRC Judge underlined that the Respondent did not specify which requests
of the Claimant were allegedly time barred and in this way it failed to comply with its
burden of proof (cf. art. 12 par. 3 of the Procedural Rules).
11. In view of the foregoing, the DRC judge concluded that since the Claimant lodged the
present claim on 23 December 2019, i.e. within two years from the event giving rise to
the dispute (i.e. remuneration related to the sporting season 2018/2019), it was not
barred by the statute of limitations in accordance with the art. 25 par. 5 of the
Regulations and is therefore admissible.
12. In continuation, the DRC judge noted that the Claimant lodged the present claim against
the Respondent in front of FIFA, maintaining that the latter has overdue payables
towards him in the total amount of TND 170,500.
13. In this context, the DRC judge took particular note of the fact that, on 18 September
2019, on 1 October 2019 and on 5 November 2019, the Claimant put the Respondent in
default of payment of the aforementioned amount, setting a 10 days’ time limit in order
to remedy the default.
14. Consequently, the DRC judge concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor
(player or club) must have put the debtor club in default in writing and have granted a
deadline of at least ten days for the debtor club to comply with its financial obligation(s).
15. Subsequently, the DRC judge took into account that the Respondent, for its part,
acknowledged owing to the Claimant the amount of TND 120,490.384.
6. At this stage, the DRC judge focused his attention on the Respondent´s argument that
the bonuses were payable pro rata (cf. the participation of the player in the relevant
matches) and that a deduction of 5% based on the TFF´s solidarity fund should apply,
both allegedly in accordance with the TFF´s regulations.
17. In this respect, the DRC judge stated that both arguments of the Respondent were topics
not contractually agreed by the parties and, in addition, the DRC judge emphasized that
the Respondent failed to provide substantial evidence.
18. In view of the foregoing, the DRC judge concluded that the Respondent’s requests for
payment of bonuses a prorrata and the deduction of 5% should be rejected since they
lacked legal basis.
19. Having said this, the DRC judge reiterated that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the Claimant
the amount of TND 5,500 as monthly salary and TND 100,000 as performance bonus for
the sporting season 2017/2018 and TND 6,000 as monthly salary and TND 120,000 as
performance bonus for the sporting season 2018/2019.
20. What is more, the DRC judge took note that the Claimant confirmed having received from
the Respondent the total amount of TND 184,750 and that the Respondent
acknowledged to owe the amount of TND 120,490.384 to the Claimant in relation to the
employment contract.
21. 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 overdue payables with sufficient documentary evidence.
22. 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 TND
170,500, corresponding to outstanding remuneration.
23. In addition, bearing in mind the considerations under numbers II./13. and II./14. above
the DRC judge established that the Respondent had delayed a due payment for more
than 30 days without a prima facie contractual basis.
24. 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 TND 170,500.
25. 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 170,500 as from 1 July 2019
until the date of effective payment.
26. In continuation, taking into account the consideration under number II./23. 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.
27. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Therefore, and in 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.
28. In this respect, the DRC judge wished to highlight 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.
29. 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.
30. 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.
31. 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.
32. 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. Decis ion of the Dispute Resolution Chamber (DRC) judge
1. The claim of the Claimant, Moses Orkuma, is admissible.
2. The claim of the Claimant is accepted.
3. The Respondent, Stade Gabesien, has to pay to the Claimant the amount of Tunisian
Dinars (TND) 170,500 plus interest of 5% p.a. as from 1 July 2019.
4. A warning is imposed on the Respondent.
5. The Claimant is directed to inform the Respondent, immediately and directly, preferably
to the e-mail address as indicated on the cover letter of the present decision, of the
relevant bank account to which the Respondent must pay the amount mentioned under
point 3. above.
6. The Respondent shall provide evidence of payment of the due amount in accordance with
point 3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be,
into one of the official FIFA languages (English, French, German, Spanish).
7. In the event that the amount due plus interest in accordance with point 3. 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 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
(cf. art. 24bis of the Regulations on the Status and Transfer of Players).
8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal
decision.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
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Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the motivated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS
directly within 21 days of receipt of notification of this decision and shall contain all the
Player Moses Orkuma, Nigeria / Club Stade Gabesien, Tunisia 2
elements in accordance with point 2 of the directives issued by the CAS. Within another 10 days
following the expiry of the time limit for filing the statement of appeal, the appellant shall file
a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4
of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: info@tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer