Labour Disputes
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 27 July 2015,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
Player A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 21 June 2013, the Player of Country B, Player A (hereinafter: the Claimant) and
the Club of Country D, Club C (hereinafter: the Respondent) entered into an
employment contract valid as from 1 July 2013 until 30 May 2014.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant the total amount of EUR 15,000 as follows:
a. EUR 2,000 “on the signing of the contract and the verification of the
medical exams which will take place in Country D no later than the 7th
July 2013”;
b. EUR 1,000 on 31 August 2013;
c. EUR 12,000 in nine equal instalments of “EUR 1,333” payable as of 30
September 2013 and “the remaining instalments at the end of every
coming month”.
3.
On 14 August 2013, the parties concluded a Supplementary Agreement, whereby
it was agreed that the Respondent was obliged to pay to the Claimant the
additional amount of EUR 15,000, payable in nine equal instalments “each
payable on the 1st day of the next working month. The first payment will take
place on September 30th 2013”.
4.
By correspondence dated 26 May 2015, the Claimant put the Respondent in
default of payment of EUR 14,120 setting a time limit of ten days in order to
remedy the default.
5.
On 19 May 2015, and completed on 2 July 2015, the Claimant lodged a claim
against the Respondent in front of FIFA asking that the Respondent be ordered to
pay to him overdue payables in the total amount of EUR 14,120 as follows:
a. As per the employment contract:
i. Part of his salary of January in the amount of EUR 458, plus his
salaries of February, March, April and May 2014 each in the
amount of “EUR 1,333”;
b. As per the Supplementary Agreement:
i. His salaries of January, February, March, April and May 2014 each
in the amount of “EUR 1,666”.
6.
The Claimant further asked to be awarded interest of 5% p.a. “from the date of
due payments until the effective date of payments”.
Player A, Country B / Club C, Country D
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7.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Considerations of the 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 19 May 2015. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2015; 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 2015), he is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a Player of Country B and a Club of Country D.
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 2015), and considering that the present claim was lodged on 19 May
2015, the 2015 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.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent concluded an employment contract valid as of 1 July 2013 until 30
May 2014, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, EUR 12,000 in nine equal instalments of “EUR 1,333”
payable as of 30 September 2013 and “the remaining instalments at the end of
every coming month”.
Player A, Country B / Club C, Country D
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6.
Furthermore, the DRC judge took note that on 14 August 2013, the parties
concluded a Supplementary Agreement whereby the Respondent agreed to pay
the Claimant an additional amount of EUR 15,000 payable in nine equal
instalments “each payable on the 1st day of the next working month. The first
payment will take place on September 30th 2013”.
7.
In continuation, the DRC judge observed that the Claimant lodged a claim against
the Respondent in front of FIFA, maintaining that the Respondent has overdue
payables towards him in the total amount of EUR 14,120 corresponding to his
salaries of (part of) January, February, March, April and May 2014 in accordance
with the employment contract as well as to his salaries of January, February,
March, April and May 2014 in accordance with the Supplementary Agreement.
8.
In this context, the DRC judge took particular note of the fact that, on 26 May
2015, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit of ten days in order to remedy the
default.
9.
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).
10.
Subsequently, the DRC judge took into account that the Respondent, for its part,
failed to present its response to the claim of the Claimant, in spite of having been
invited to do so. In this way, the DRC judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
11.
Furthermore, as a consequence of the aforementioned consideration, the DRC
judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he
shall take a decision upon the basis of the documents on file, in other words,
upon the statements and documents presented by the Claimant.
12.
Having said this, the DRC judge recalled that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to him,
inter alia, EUR 12,000 in nine equal instalments of “EUR 1,333” payable as of 30
September 2013 and “the remaining instalments at the end of every coming
month”. Moreover, the DRC judge pointed out that the Respondent undertook to
pay to the Claimant EUR 15,000 payable in nine equal instalments “each payable
Player A, Country B / Club C, Country D
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on the 1st day of the next working month. The first payment will take place on
September 30th 2013”, in accordance with the Supplementary Agreement.
13.
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.
14.
On account of the aforementioned considerations and taking into account the
claim of the Claimant, the DRC judge established that the Respondent failed to
remit the Claimant’s remuneration in the total amount of EUR 14,120
corresponding to his salaries of (part of) January, February, March, April and May
2014 in accordance with the employment contract as well as to his salaries of
January, February, March, April and May 2014 in accordance with the
Supplementary Agreement.
15.
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.
16.
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 EUR 14,120.
17.
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 each of the relevant
payments as of the day following the day on which the relevant payments fell
due, until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./15. 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.
19.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations, he
has competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent did not reply to the claim of the Claimant, the DRC judge decided to
impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the
Regulations. Furthermore, taking into consideration the amount due of EUR
14,120, the DRC judge regarded a fine amounting to CHF 2,000 as appropriate
and hence decided to impose said fine on the Respondent.
Player A, Country B / Club C, Country D
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20.
In relation to the above, 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.
*****
III.
Decision of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days as from the
date of notification of this decision, overdue payables in the amount of EUR
14,120, plus interest at the rate of 5% p.a. until the date of effective payment as
follows:
a. 5% p.a. on the amount of EUR 458 as from 1 February 2014;
b. 5% p.a. on the amount of EUR 1,666 as from 2 February 2014;
c. 5% p.a. on the amount of EUR 1,333 as from 1 March 2014;
d. 5% p.a. on the amount of EUR 1,666 as from 2 March 2014;
e. 5% p.a. on the amount of EUR 1,333 as from 1 April 2014;
f. 5% p.a. on the amount of EUR 1,666 as from 2 April 2014;
g. 5% p.a. on the amount of EUR 1,333 as from 1 May 2014;
h. 5% p.a. on the amount of EUR 1,666 as from 2 May 2014;
i. 5% p.a. on the amount of EUR 1,333 as from 1 June 2014;
j. 5% p.a. on the amount of EUR 1,666 as from 2 June 2014.
3.
In the event that the amount and interest due to the Claimant is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
4.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittance is to be made and to notify the DRC
judge of every payment received.
Player A, Country B / Club C, Country D
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5.
The Respondent is ordered to pay a fine in the amount of CHF 2,000. The fine is to
be paid within 30 days of notification of the present decision to FIFA to the
following bank account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the motivated decision (legal remedy):
According to article 67 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, a copy of which we enclose hereto. 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
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Markus Kattner
Deputy Secretary General
Encl. CAS directives
Player A, Country B / Club C, Country D
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