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
Decision of the
Dispute Resolution Chamber (DRC) Judge
passed on 5 May 2020
by Pavel Pivarov (Russia)
on the claim presented by the player,
Cesar Emmanuel Pereyra, Argentina,
represented by Mr Fernando Claudio Cuneo
as Claimant
against the club,
Club Blooming, Bolivia
as Respondent
regarding an employment-related dispute
between the parties
I. Facts of the case
1. On 16 August 2017, the Argentinian player, Mr Cesar Emmanuel Pereyra (hereinafter: the player or Claimant) and the Bolivian club, Club Blooming (hereinafter: the club or Respondent) signed an employment contract (hereinafter: the contract) valid as from 1 January 2018 until 31 December 2018.
2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant, inter alia, the following remuneration:
USD 10,000 as monthly salary, payable at the latest on the 15th day of the following month;
USD 30,000 payable on 2 October 2017;
USD 20,000 payable “during the year 2018” (free translation from Spanish).
3. On 8 April 2019, the Claimant granted the Respondent 10 days to pay the total amount of USD 50,000, corresponding to the monthly salaries of October, November and December 2018, as well as the amount of USD 20,000, supposed to be paid “during the year 2018”.
4. On 7 May 2019, the Respondent replied to the default notice, suggesting a new payment schedule. According to this schedule, the Respondent proposed to make monthly payments of USD 7,143 between June and December 2019.
5. On 4 June 2019, the Respondent suggested another payment schedule to the Claimant, whereby it would make the four following payments:
USD 5,000 on 28 June 2019;
USD 10,000 on 31 July 2019;
USD 15,000 on 31 October 2019;
USD 20,000 “on the date of Blooming's home qualifier for the 2019 Clausura tournament” (free translation from Spanish).
6. On 26 June 2019, the Claimant replied, accepting in principle the instalments but requesting that the two last ones shall be paid in August and September 2019.
7. On 15 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA.
8. In his claim, the Claimant requested the total amount of USD 50,000, broken down as follows:
USD 30,000 as the monthly salaries of October, November and December 2019;
USD 20,000 as the payment due “during the year 2018”.
9. In addition, the Claimant requested the payment of 5% interest on the aforementioned amounts, as from the due dates.
10. In spite of being invited to do so, the Respondent did not reply to the claim.
II. Considerations of the Dispute Resolution Chamber judge
1. First of all, the Dispute Resolution Chamber judge (hereinafter also referred to as the judge or 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 15 January 2020. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2019 edition; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. Subsequently, the judge referred to art. 3 par. 1 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 (March 2020 edition), the Dispute Resolution Chamber judge is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between an Argentinian player and a Bolivian club.
3. Furthermore, the 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 (March 2020 edition), and considering that the present claim was lodged on 15 January 2020, the January 2020 edition of said regulations (hereinafter: 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 judge entered into the substance of the matter. In this respect, the judge started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the 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. Having said this, the judge acknowledged that the Claimant and the Respondent had signed an employment contract on 16 August 2017, valid as from 1 January 2018 until 31 December 2018, according to which the Claimant was entitled to receive the remuneration as set out at point. I./ 2. above.
6. Furthermore, the DRC judge took note that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables in the total amount of USD 50,000. Moreover, the Claimant also requested 5% interest p.a. on the aforementioned amount.
7. In this context, the judge took particular note of the fact that, on 8 April 2019, the Claimant put the Respondent in default of payment of his salaries of October, November and December 2018, as well as the amount of USD 20,000, supposed to be paid “during the year 2018”, thereby setting a time limit of 10 days.
8. 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).
9. Subsequently, the judge noted that the Respondent failed to provide its reply to the claim.
10. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit to the Claimant the total amount of USD 50,000, corresponding to the salaries of October, November and December 2018, as well as the fee, in the amount of USD 20,000, payable “during the year 2018”.
11. In addition, the judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.
12. 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 overdue payables in the total amount of USD 50,000.
13. In addition, taking into consideration the Claimant’s request and the constant practice of the Dispute Resolution Chamber (DRC) judge in this regard, the judge decided to award the Claimant interest on the above-mentioned amount as follows:
5% interest p.a. as from 16 November 2018 until the date of effective payment on the amount of USD 10,000;
5% interest p.a. as from 16 December 2018 until the date of effective payment on the amount of USD 10,000;
5% interest p.a. as from 16 January 2019 until the date of effective payment on the amount of USD 10,000; and
5% interest as from 1 January 2019 until the date of effective payment on the amount of USD 20,000.
14. In continuation, taking into account the consideration under point II./ 11. above, the 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.
15. The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that the Respondent did not reply to the claim of the Claimant, the DRC judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
16. Furthermore, the 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.
17. 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.
18. Therefore, bearing in mind the above, the DRC judge decided that, in the event that the Respondent does not pay the amount 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.
19. 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 amount, in accordance with art. 24bis par. 3 of the Regulations.
III. Decision of the Dispute Resolution Chamber judge
1. The claim of the Claimant, Cesar Emmanuel Pereyra, is accepted.
2. The Respondent, Club Blooming, has to pay to the Claimant, within 45 days as from the date of notification of this decision, overdue payables the amount of USD 50,000 plus interest as follows:
a. 5% interest p.a. as from 16 November 2018 until the date of effective payment on the amount of USD 10,000;
b. 5% interest p.a. as from 16 December 2018 until the date of effective payment on the amount of USD 10,000;
c. 5% interest p.a. as from 16 January 2019 until the date of effective payment on the amount of USD 10,000; and
d. 5% interest as from 1 January 2019 until the date of effective payment on the amount of USD 20,000.
3. A warning is imposed on the Respondent.
4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the email address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount plus interest mentioned under point 2. above.
5. The Respondent shall provide evidence of payment of the due amount plus interest in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount plus interest in accordance with point 2. 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).
7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.
8. In the event that the amount plus interest due in accordance with point 2. above 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.
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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 anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).
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). 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 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.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
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