DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 16 February 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 25 July 2013, the player from country B, Player A (hereinafter: Claimant), and the
club from country D, Club C (hereinafter: Respondent) signed an employment
contract valid as from 27 July 2013 until 26 July 2015.
2.
On 29 September 2015, the Claimant and the Respondent signed a settlement
agreement, in accordance with which, inter alia, the Respondent undertook to pay
to the Claimant the amount of USD 112,500 in the following three instalments: USD
20,000 on or before 25 September 2015; USD 30,000 on or before 30 October 2015;
USD 62,500 on or before 15 December 2015.
3.
According to art. 4 of the settlement agreement, if any of the instalments is not paid
on the established dates, the full outstanding balance shall immediately become
due.
4.
Moreover, art. 4 of the settlement agreement established an interest of 5% p.a. on
the full outstanding balance as of the date of “default”. The settlement agreement
defined “default” as “a failure to pay an instalment on or before the date it is due”.
5.
By correspondence dated 1 December 2015, the Claimant put the Respondent in
default of payment of USD 92,500 relating to the instalments due on 30 October
2015 and 15 December 2015, respectively, setting a 10 days’ time limit in order to
remedy the default.
6.
On 11 December 2015 with a subsequent completion on 23 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 USD
92,500 corresponding to the full outstanding balance, in accordance with the
settlement agreement.
7.
The Claimant further asks to be awarded 5% interest as of 1 November 2015.
8.
In reply to the claim, the Respondent held that “we were in communication with
player’s agent Mr. Q in phone no. XXXXXXXXXXXXXX about settle the matter
amicably, and he inform us that he need discussing this with the player and reply as
soon as possible. So, now we are waiting.”.
Player A, country B / Club C, country D
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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 11 December 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 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 from
country B and a club from 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 11 December
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, DRC judge acknowledged that the Claimant and the Respondent
signed a settlement agreement, in accordance with which, inter alia, the Claimant
was entitled to receive from the Respondent the amount of USD 112,500 in the
following three instalments: USD 20,000 on or before 25 September 2015; USD
30,000 on or before 30 October 2015; USD 62,500 on or before 15 December 2015.
Furthermore, the DRC judge duly noted that in accordance with the agreement, if
any of the instalments is not paid on the established dates, the full outstanding
balance shall immediately become due. The DRC judge further noted that, according
Player A, country B / Club C, country D
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to the settlement agreement, interest of 5% p.a. on the full outstanding balance as
of the date of “default” fell due.
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 USD
92,500 corresponding to the full outstanding balance in relation with instalments
payable until 30 October 2015 and 15 December 2015, respectively. The Claimant
sustained that, in accordance with the settlement agreement, and as the Respondent
failed to pay the instalment due on or before 30 October 2015, on 31 October 2015,
the full outstanding balance amounting to USD 92,500, fell due.
7.
In this respect, the DRC judge highlighted that bearing in mind art. 4 of the
settlement agreement, the parties agreed that if any of the instalments is not paid
on the established dates, the full outstanding balance shall immediately become
due, along with an interest of 5% p.a as of the date of “default”. The DRC judge
noted that in the settlement agreement, “default” is defined as “a failure to pay an
instalment on or before the date it is due”.
8.
In this context, the DRC judge took particular note of the fact that, on 1 December
2015, the Claimant put the Respondent in default of payment of the full outstanding
balance of USD 92,500, setting a time limit expiring on 11 December 2015 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,
held that “we were in communication with player’s agent Mr. Q in phone no.
XXXXXXXXXXXXXX about settle the matter amicably, and he inform us that he need
discussing this with the player and reply as soon as possible. So, now we are
waiting.”.
11.
In this regard, the DRC judge considered that the arguments 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.
Player A, country B / Club C, country D
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12.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
13.
Having said this, the DRC judge acknowledged that, in accordance with the
settlement agreement on file and taking into account the above circumstances, the
Respondent was obliged to pay to the Claimant the amount of USD 92,500 the latest
by 31 October 2015.
14.
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.
15.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit to the Claimant the amount of USD 92,500, which fell
due on 31 October 2015.
16.
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.
17.
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 92,500.
18.
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
92,500 as from 1 November 2015 until the date of effective payment.
19.
In continuation, taking into account the consideration under number II./16. 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.
20.
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 duly 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.
Player A, country B / Club C, country D
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21.
In this connection, 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 92,500, plus
interest at the rate of 5% p.a. as from 1 November 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.
5.
A warning is imposed on the Respondent.
*****
Player A, country B / Club C, country D
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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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