F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2020-2021) – fifa.com – atto non ufficiale – Decision 26 August 2020
Decision of the
DRC Judge
passed on 26 August 2020,
regarding an employment-related dispute concerning the player Marcos Dos
Santos Moraes
BY:
José Luis Andrade (Portugal), DRC Judge
CLAIMANT:
Marcos Dos Santos Moraes, Brazil
Represented by Mr Slim Boulasnem
RESPONDENT:
Al Merreikh Khartoum, Sudan
I. FACTS OF THE CASE
1. On 8 June 2018, the Brazilian player, Marcos Dos Santos Moraes (hereinafter: Claimant or player) and
the Sudanese club, Al Merreikh Khartoum (hereinafter: Respondent or club) signed an employment
contract (hereinafter: contract) valid as from the date of signature until 8 June 2019.
2. Art. 4 of the contract read as follows: “The duration of period of this contract shall be considered as
from the day of its approval by the Non-Amateur players Affairs committee of Sudan football
association”.
3. According to art. 5 of the contract, the Claimant was entitled to the following remuneration and
benefits:
- USD 5,000 as a sign-on fee;
- USD 24,000 as salaries, corresponding to USD 2,000 per month;
- Accommodation;
- 1 airfare ticket from the Claimant’s country to Khartoum and back in Economy Class;
- Transportation facilities in Khartoum.
4. According to information contained in the Transfer Matching System (TMS), on 12 June 2018, the
player was registered with the Respondent.
5. On 26 July and 25 August 2018, the agent of the Claimant requested the Respondent to issue his
“international card” (free translation from French) as soon as possible given that he is still in Brazil and
put the Respondent in default to pay the sign-on fee of USD 5,000 and a monthly salary of USD 2,000
within 10 days.
6. On 4 September 2018, the Respondent replied, stating that it was working on the matter with the
Sudanese FA and that it would come back to the Claimant as soon as possible. The Claimant reiterated
his request on 7 and 20 September 2018.
7. By means of a letter dated 24 April 2020 and sent on 27 April 2020, the Claimant put the Respondent
in default to pay USD 24,000 corresponding to the totality of his salaries pursuant to the contract
within 15 days.
8. On 24 May 2020, the Claimant lodged a claim against the Respondent in front of FIFA. In his claim,
the Claimant stated that the Respondent never registered him as a player of the team, despite the
requests of his previous agent. Moreover, the Respondent only paid the sign-on fee of USD 5,000 but
all the salaries are outstanding.
9. In light of the above, the Claimant requested the payment of USD 24,000 as outstanding
remuneration as follows:
- USD 2,000 as the salary of June 2018 + 5% interest as from 1 July 2018;
- USD 2,000 as the salary of July 2018 + 5% interest as from 1 August 2018;
- USD 2,000 as the salary of August 2018 + 5% interest as from 1 September 2018;
- USD 2,000 as the salary of September 2018 + 5% interest as from 1 October 2018;
- USD 2,000 as the salary of October 2018 + 5% interest as from 1 November 2018;
- USD 2,000 as the salary of November 2018 + 5% interest as from 1 December 2018;
- USD 2,000 as the salary of December 2018 + 5% interest as from 1 January 2019;
- USD 2,000 as the salary of January 2019 + 5% interest as from 1 February 2019;
- USD 2,000 as the salary of February 2019 + 5% interest as from 1 March 2019;
- USD 2,000 as the salary of March 2019 + 5% interest as from 1 April 2019;
- USD 2,000 as the salary of April 2019 + 5% interest as from 1 May 2019;
- USD 2,000 as the salary of May 2019 + 5% interest as from 1 June 2019.
10. In reply to the claim, the Respondent rejected the claim and referred to art. 4 of the contract deeming
that the contract concluded between the parties had not been approved by the Sudanese authority.
11. In this respect, in the club sustained that the Sudan FA raised the matter to FIFA in order to find a
solution in this matter and, consequently, despite the player having travelled to Sudan and having
even participated to a training camp in UAE, the contract did not took place due to the
aforementioned refusal which has been confirmed after the alleged intervention of FIFA.
12. Finally, in March 2019, the Respondent explained that it sent the proof of “No TPO” for the player.
II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
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 24 May 2020 and submitted for decision on 26 August
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 January 2020), he is competent to deal with the matter
at stake, which concerns an employment-related dispute with an international dimension between a
Brazilian player and a Sudanese 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 June 2020), and considering that the present claim was
lodged on 24 May 2020, the March 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 8 June 2018, the player and the club
had concluded an employment contract valid as from the date of its signature until 8 June 2019,
according to which the Respondent undertook to pay the Claimant, inter alia, a sign-on fee and a
monthly salary of USD 2,000.
7. In this context, the DRC judge took note of the player’s claim maintaining that he received the
promised sign-on fee, but that the Respondent failed to remit any salaries resulting from the contract.
8. Subsequently, the DRC judge took note that the club, for its part, rejected the claim, argued that the
contract had not been approved by the Sudanese authorities and that it therefore does not owe
salaries to the player.
9. On account of the above, the DRC judge started analysing if the contract dated 8 June 2018 was
validly concluded between the parties.
10. In this regard, he referred to the constant jurisprudence of the DRC, upon which the validity of a
contract cannot be subject to the completion of administrative formalities, such as the approval of a
national authority of the Respondent’s country.
11. In addition, the DRC judge wished to point out that, in accordance with the information available in
TMS, the player was validly registered with the Respondent on 12 June 2018. Furthermore, the DRC
emphasized that the Respondent acknowledged that the player travelled to Sudan and participated
in a training camp and therefore rendered his services.
12. Finally, the DRC judge noted that the Respondent did not provide any evidence in support of its
allegations and no proof of any payments has been put forward.
13. As such, the DRC judge concluded that the contract was validly concluded, the player rendered his
services and therefore the Respondent has to remit the player’s salaries.
14. In this context, the DRC judge took particular note of the fact that, on 24 April 2020 as well as on 27
April 2020, the Claimant put the Respondent in default of payment of the aforementioned amount,
setting a 15 days’ time limit in order to remedy the default.
15. 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).
16. Having said this, the DRC judge acknowledged that, in accordance with the employment contract
provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of USD
24,000 as a salaries, payable in twelve monthly salaries of USD 2,000 each as from June 2018 until
May 2019.
17. 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.
18. 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 24,000, corresponding to the
the monthly salaries as from June 2018 until May 2019.
19. In addition, bearing in mind the considerations under numbers II./14. and II./15. above the DRC judge
established that the Respondent had delayed a due payment for more than 30 days without a prima
facie contractual basis.
20. 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 24,000.
21. 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 24,000 as from the respective due dates until the date of effective
payment.
22. In continuation, taking into account the consideration under number II./19. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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.
28. 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 DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Marcos Dos Santos Moraes, is accepted.
2. The Respondent, Al Merreikh Khartoum, has to pay to the Claimant USD 24,000 as outstanding
remuneration plus 5% interest p.a. as follows:
- on USD 2,000 as from 1 July 2018 until the date of effective payment;
- on USD 2,000 as from 1 August 2018 until the date of effective payment;
- on USD 2,000 as from 1 September 2018 until the date of effective payment;
- on USD 2,000 as from 1 October 2018 until the date of effective payment;
- on USD 2,000 as from 1 November 2018 until the date of effective payment;
- on USD 2,000 as from 1 December 2018 until the date of effective payment;
- on USD 2,000 as from 1 January 2019 until the date of effective payment;
- on USD 2,000 as from 1 February 2019 until the date of effective payment;
- on USD 2,000 as from 1 March 2019 until the date of effective payment;
- on USD 2,000 as from 1 April 2019 until the date of effective payment;
- on USD 2,000 as from 1 May 2019 until the date of effective payment;
- on USD 2,000 as from 1 June 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 Dispute Resolution Chamber 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).
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