DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 January 2017,
in the following composition:
Geoff Thompson (England), Chairman
Johan van Gaalen (South Africa), member
Wouter Lambrecht (Belgium), member
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 1 September 2015, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract valid from 1 September 2015 until 31 May 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia EUR 3,300 payable between the 18th and 20th day of “the
next month”, which will be reduced by 15% to EUR 2,805 in case of nonparticipation in European competitions (hereinafter: reduced salary).
3.
By correspondence dated 5 October 2016, the Claimant put the Respondent in
default of payment of EUR 14,025 setting a ten day time limit for the Respondent to
cure the default.
4.
On 2 November 2016, 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 amount of EUR 14,025 corresponding to five monthly reduced salaries between
January and May 2016. The Claimant claims 5% interest p.a. from the relevant due
dates.
5.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First, the Dispute Resolution Chamber (hereinafter: the DRC or the Chamber)
analysed whether it was competent to deal with the matter at hand. In this respect,
it took note that the present matter was submitted to FIFA on 2 November 2016.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (2015 edition; hereinafter: the Procedural
Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the DRC 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 (2016 edition) the
Chamber 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 members of the Chamber analysed which regulations should be
applicable as to the substance of the matter. In this respect, the DRC confirmed that
in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Player A, Country B / Club C, Country D
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Transfer of Players (2016 edition), and considering that the present claim was lodged
on 2 November 2016, the 2016 edition of said regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In this respect, the DRC
started by acknowledging all the aforementioned facts as well as the arguments and
the documentation on file. The DRC, however, 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.
5.
Having said this, the Dispute Resolution Chamber acknowledged that the Claimant
and the Respondent signed an employment contract valid from 1 September 2015
until 31 May 2016, in accordance with which the Claimant was entitled to receive
from the Respondent, inter alia, the monthly payment of EUR 3,300, which would be
reduced by 15% to EUR 2,805 in case of non-participation in European competitions.
6.
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
14,025 corresponding to five monthly salaries running from January 2016 until May
2016.
7.
In this context, the DRC took particular note of the fact that on 5 October 2016, the
Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit of ten days for the Respondent to cure the default.
8.
Consequently, the Chamber 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 DRC 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 Chamber considered that the Respondent had renounced its
right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the basis of the documents on file, in other words, upon the
statements and documents presented by the Claimant.
Player A, Country B / Club C, Country D
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11.
Having said this, the members of the Chamber acknowledged that in accordance
with the employment contract provided by the Claimant, the Respondent was
obliged to pay to the Claimant a monthly salary of EUR 3,300, which would be
reduced by 15% to EUR 2,805 in case of non-participation in European competitions.
12.
Taking into account the documentation presented by the Claimant in support of his
petition, the Chamber concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the members of the Chamber
established that the Respondent failed to remit the Claimant’s remuneration in the
total amount of EUR 14,025 corresponding to five monthly reduced salaries between
January and May 2016.
14.
In addition, the Dispute Resolution Chamber established that the Respondent had
delayed a due payment for more than 30 days without a prima facie contractual
basis.
15.
Consequently, the members of the Chamber 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 14,025.
16.
In continuation, taking into account the consideration under number II.14 above, the
Chamber 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.
17.
The DRC established that by virtue of the aforementioned article, it has competence
to impose sanctions on the Respondent. In this context, the DRC highlighted that on
8 February 2016, the Respondent had already been found by the Dispute Resolution
Chamber to have delayed a due payment for more than 30 days without a prima
facie contractual basis and without the Respondent having responded to the
relevant claim, as a result of which a fine had been imposed on the Respondent. The
Chamber further took into account that on 17 June 2016, the Respondent had been
found by the DRC, for the second time, to have delayed a due payment for more
than 30 days without a prima facie contractual basis without having responded to
the claim, as a result of which a ban from registering any new players, either
nationally or internationally, for one entire registration period had been imposed on
the Respondent.
Player A, Country B / Club C, Country D
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18.
Consequently, the Chamber established that in the present matter, the Respondent
is found to have delayed a due payment for more than 30 days without a prima facie
contractual basis for the third time.
19.
In consideration of the aforementioned, the Chamber referred to art. 12bis par. 6 of
the Regulations, which establishes that a repeated offence will be considered as an
aggravating circumstance and lead to a more severe penalty.
20.
Moreover, the members of the Chamber wished to underline and took into account
that the Respondent has been found by the Dispute Resolution Chamber as well as
the DRC judge responsible for not complying with its financial obligations towards
players on various occasions in the recent past.
21.
Therefore, bearing in mind the considerations to be found in points II.17 to II.20
above, the members of the Chamber decided that in the event that the Respondent
does not pay the amount due to the Claimant within 30 days following the
notification of the present decision, a ban from registering any new players, either
nationally or internationally, for the next two entire registration periods following
the notification of the present decision shall become effective on the Respondent in
accordance with art. 12bis par. 4 lit. d) of the Regulations.
III.
Decision of the Dispute Resolution Chamber
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, the amount of EUR 14,025 plus 5% interest p.a.
until the date of effective payment as follows:
a. 5% p.a. as of 21 February 2016 on the amount of EUR 2,805;
b. 5% p.a. as of 21 March 2016 on the amount of EUR 2,805;
c. 5% p.a. as of 21 April 2016 on the amount of EUR 2,805;
d. 5% p.a. as of 21 May 2016 on the amount of EUR 2,805;
e. 5% p.a. as of 21 June 2016 on the amount of EUR 2,805.
3.
In the event that the aforementioned amounts plus interest are not paid within the
stated time limit, the present matter shall be submitted, upon request, to FIFA’s
Disciplinary Committee for consideration and a formal decision.
Player A, Country B / Club C, Country D
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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 Dispute
Resolution Chamber of every payment received.
5.
In the event that the aforementioned amount due to the Claimant is not paid by the
Respondent within 30 days as from the date of notification of this decision, the
Respondent shall be banned from registering any new players, either nationally or
internationally, for the next two entire and consecutive registration periods
following the notification of the present decision.
*****
Note relating to the motivated decision (legal remedy):
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, 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 Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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