DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 4 February 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), 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 3 February 2014, the player from country B, Player A (hereinafter; the
Claimant), and the club from country D, Club C (hereinafter; the Respondent)
signed an employment contract which “enters into force on 3 January 2014 and
be effective during the second half of the 2013/2014 football season”.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant inter alia the total amount of EUR 400,000 broken down as
follows:
a. EUR 100,000 payable on 25 February 2014;
b. EUR 100,000 payable on 25 March 2014;
c. EUR 100,000 payable on 25 April 2014;
d. EUR 100,000 payable on 25 May 2014;
3.
By correspondence dated 8 December 2015, the Claimant, after having previously
done so on 16 November 2015, put the Respondent in default of payment of EUR
200,000 for a second time setting a time limit expiring on 18 December 2015 in
order to remedy the default.
4.
On 30 November 2015, and completed on 18 December 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 amount of EUR 200,000
corresponding to the payments due on 25 April and 25 May 2014 as well as
procedural costs.
5.
In spite of having been invited to do so, the Respondent did not reply to the
claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber of DRC) 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 30 November 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).
2.
Subsequently, the members of the Chamber 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 (edition 2015), the Dispute Resolution Chamber is competent to deal with
Player A, country B / Club C, country D
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the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and a club from country
D.
3.
Furthermore, the Chamber 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 par. 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the present claim was lodged on 30
November 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 Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as
the arguments and documentation on file. However, the DRC 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 members of the Chamber acknowledged that the Claimant
and the Respondent entered into an employment contract valid for the second
half of the season 2013/2014, in accordance with which the Claimant was entitled
to receive from the Respondent inter alia the amount of EUR 400,000 in 4 equal
instalments of EUR 100,000, payable on 25 February, 25 March, 25 April and 25
May 2014.
6.
Furthermore, the DRC took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue
payables towards him in the amount of EUR 200,000 corresponding to the
payments due on 25 April and 25 May 2014.
7.
In this context, the members of the DRC took particular note of the fact that, on 8
December 2015, the Claimant put the Respondent in default of payment of the
aforementioned amounts setting a time limit of 10 days in order to remedy the
default.
8.
Consequently, the DRC 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 Chamber 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
Player A, country B / Club C, country D
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invited to do so. In this way, the DRC considered that the Respondent renounced
its right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the
members of the Chamber concurred that in accordance with art. 9 par. 3 of the
Procedural Rules, they shall take a decision upon the basis of the documents on
file, in other words, upon the statements and documents presented by the
Claimant.
11.
Having said this, the DRC acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to him
inter alia the amount of EUR 400,000 in 4 equal instalments on 25 February, 25
March, 25 April and 25 May 2014.
12.
Taking into account the documentation presented by the Claimant in support of
his petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of
EUR 200,000 corresponding to the payments due on 25 April and 25 May 2014.
14.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
15.
Consequently, the DRC 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 200,000.
16.
Furthermore, as regards the claimed procedural costs, the DRC referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber.
Consequently, the Chamber decided to reject the Claimant’s request in this
regard.
17.
In continuation, taking into account the consideration under number II./14. above,
the DRC 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.
18.
The Chamber established thus that in virtue of the aforementioned article, it has
competence to impose sanctions on the Respondent. In this context, the members
of the Chamber highlighted that on 17 April 2015, the Respondent had already
Player A, country B / Club C, country D
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been found 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 was imposed on the Respondent by
the Single Judge of the Players’ Status Committee. Consequently, the Chamber
established that, for the second time, the Respondent has delayed a due payment
for more than 30 days without a prima facie contractual basis.
19.
Moreover, the DRC 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.
20.
Along these lines, the DRC 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 more severe penalty.
21.
Bearing in mind the considerations under numbers II./18. and II./19. above, the
DRC decided that in the event that the Respondent does not pay the amount due
to the Claimant within the 30 days following the notification of the present
decision, a ban from registering any new players, either nationally or
internationally, for the next entire registration period 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 partially 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
200,000.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limit and 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
Dispute Resolution Chamber of every payment received.
Player A, country B / Club C, country D
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5.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the Respondent shall be banned from registering any
new players, either nationally or internationally, for the next entire registration
period following the notification of the present decision.
*****
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 Dispute Resolution Chamber:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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