Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 13 January 2016,
by Philippe Diallo (France), 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 27 January 2014, the Player of Country B, Player A (hereinafter: Claimant), and
the Club of Country D, Club C (hereinafter: Respondent) signed an employment
contract valid as from the date of its signature until 31 July 2014 and whereby the
Claimant was entitled to receive from the Respondent a monthly salary of USD
7,500.
2.
On 23 June 2015, the Claimant started a proceeding against the Respondent in
front of FIFA requesting the amount of USD 15,000 as outstanding salaries of June
and July 2014 in accordance with the contract.
3.
On 26 July 2015, the Respondent made a proposal to the Claimant to pay the
outstanding remuneration in three equal payments of USD 5,000 payable on 1
August, 1 September and 1 October 2015.
4.
On 3 September 2015, the Claimant informed FIFA that he had accepted the
Respondent’s proposal and acknowledged having received the first payment.
5.
By correspondence dated 16 November 2015, the Claimant put the Respondent in
default of payment of USD 10,000 as per the payments due on 1 September and 1
October 2015 in accordance with the proposal setting a time limit of 10 days in
order to remedy the default.
6.
On 29 October 2015, and completed on 26 November 2015, the Claimant lodged a
claim against the Respondent requesting the amount of USD 10,000
corresponding to the second and third payments as per the proposal plus
interests.
7.
In reply to the claim, the Respondent held that “we are ready to pay the specified
sum, but our circumstances are very difficult in the present time, and we hope you
give us an additional six months in the hope of improving our conditions and
paying our debts”.
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 29 October 2015. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2015; hereinafter: Procedural Rules) are applicable to the matter at hand
(cf. art. 21 of the Procedural Rules).
Player A, Country B / Club C, Country D
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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 29 October
2015, the 2015 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 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 signed an employment contract valid from 27 January 2014 until 31
July 2014, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, a monthly salary of USD 7,500.
6.
Furthermore, the DRC judge took note that, on 26 July 2015, the Respondent
made a proposal to the Claimant to pay him USD 15,000 as outstanding
remuneration in 3 equal payments of USD 5,000 payable on 1 August, 1
September and 1 October 2015, which was accepted by the Claimant on 3
September 2015.
7.
As the Respondent apparently paid only one out of the three instalments, 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 USD
10,000 corresponding to the second and third payments as per the proposal.
8.
In this context, the DRC judge took particular note of the fact that, on 16
November 2015, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a time limit of 10 days in order to remedy the
default.
Player A, Country B / Club C, Country D
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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,
raised financial difficulties in order to justify the non-payment of the due
amounts.
11.
In this regard, the DRC judge considered that the argument raised by the
Respondent cannot be considered a valid reason for non-payment of the monies
claimed by the Claimant, in order words, the reasons brought forward by the
Respondent in its defence do not exempt the Respondent from its obligation to
fulfil its contractual obligations towards the Claimant. Along these lines, the DRC
judge wished to emphasise that it was the Respondent itself which offered to
make the payments of the amounts due to the Claimant in accordance with the
proposal.
12.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
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 10,000 corresponding to the second and third payments in accordance
with the proposal.
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
overdue payables in the total amount of USD 10,000.
16.
Furthermore, taking into account the Claimant’s request, the DRC judge decided
that the Respondent must pay to the Claimant interest of 5% p.a. on the amount
of USD 10,000 as from 29 October 2015 until the date of effective payment.
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
Player A, Country B / Club C, Country D
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prima facie contractual basis may be sanctioned in accordance with art. 12bis par.
4 of the Regulations.
18.
Along these lines, 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 replied to the claim of the Claimant 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.
19.
In this respect, 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 USD
10,000 plus interest at the rate of 5% p.a. as from 29 October 2015 until the date
of effective payment.
3.
In the event that the amount 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.
A warning is imposed on the Respondent.
*****
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
Acting Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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