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 22 January 2014, 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 the date of signature until 30 June 2015.
2.
On 7 November 2014, the parties agreed to extend their contractual relationship
until 30 June 2017.
3.
Thereafter, on 19 January 2015, the Claimant and the Respondent mutually agreed
upon the termination by mutual consent of the employment contract and, in
consequence, concluded a termination agreement by means of which the
Respondent undertook to pay the amount of USD 78,900 to the Claimant by no later
than 31 March 2015.
4.
By correspondence dated 30 October 2015, the Claimant put the Respondent in
default of payment of the amount of USD 51,900, setting a deadline of 10 days in
order to remedy the default.
5.
On 8 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 51,900 as balance of the amount agreed in the termination
agreement. In particular, the Claimant alleged having only received from the
Respondent USD 27,000 out of the total amount of USD 78,900 foreseen in the
termination agreement.
6.
The Claimant further asked to be awarded interest at a rate of 5% p.a. as of 1 April
2015 as well as “attorney’s fees at the rate of 20% on the value of the conviction”.
7.
In reply to the claim, the Respondent solely acknowledged the Claimant’s claim in
full and evoked financial hardship and depreciation of its national currency in order
to justify the non-payment of the remaining amount of USD 51,900.
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
Player A, country B / Club C, country D
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to FIFA on 8 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 an 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 8 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, the DRC judge acknowledged that, on 22 January 2014, the
Claimant and the Respondent signed an employment contract valid until 30 June
2015 and extended on 7 November 2014 until 30 June 2017. Moreover, the DRC
judge acknowledged that the employment contract was mutually terminated on 19
January 2015 by means of the termination agreement signed by both parties,
according to which the Respondent undertook to pay the Claimant the amount of
USD 78,900 by 31 March 2015.
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
51,900 corresponding to the balance of the amount foreseen in the termination
agreement, after payment of USD 27,000 by the Respondent.
7.
In this context, the DRC judge took particular note of the fact that, on 30 October
2015, the Claimant put the Respondent in default of payment of the
Player A, country B / Club C, country D
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aforementioned amount of USD 51,900, setting a time limit of ten days in order to
remedy the default.
8.
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).
9.
Subsequently, the DRC judge took into account that the Respondent, for its part,
confirmed the sole payment of USD 27,000 to the Claimant and referred to financial
hardship and the depreciation of its national currency to justify the non-payment of
the remaining amount.
10.
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.
11.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
12.
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 51,900 corresponding to part of the amount foreseen in the termination
agreement.
13.
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.
14.
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 51,900.
15.
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 USD 51,900
as from 1 April 2015 until the date of effective payment.
16.
In continuation, taking into account the consideration under number II./13. 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.
17.
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 has previously been found to have neglected its contractual obligations
towards players, 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 USD 51,900, the DRC judge regarded a fine
amounting to CHF 7,500 as appropriate and hence decided to impose said fine on
the Respondent.
18.
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.
19.
Finally, the DRC judge rejected the Claimant’s request for “attorney’s fees” in
accordance with art. 18 par. 4 of the Procedural Rules.
III.
Decision of the DRC judge
1.
The claim of the Claimant is partially accepted.
2.
The Respondent 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 51,900, plus
interest at the rate of 5% p.a. as from 1 April 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.
Any further claim lodged by the Claimant is rejected.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 7,500. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case nr.:
Player A, country B / Club C, country D
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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
Acting Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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