DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 February 2018,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Eirik Mons en (Norw ay ), member
S téphane Burchkalter (France), member
Philippe Diallo (France), member
Jos eph Bell (Cameroon), member
on the claim presented by the player,
Play er 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 cas e
1.
On 6 January 2016, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club E, signed an employment contract valid as from
the date of signing until 31 May 2019.
2.
On 25 August 2016, the Claimant, Club E, and the Club of Country D, Club C
(hereinafter: the Respondent) signed a “temporary transfer contract”
(hereinafter: the contract) pursuant to which the Claimant was loaned to the
Respondent as from 25 August 2016 until 31 May 2017.
3.
In accordance with the contract, the Respondent undertook to pay to the
Claimant, inter alia, EUR 30,000 “as advance payment”, and EUR 180,000 in 10
equal monthly instalments of EUR 18,000 to be paid the 30 th day of each month
(28th in February) as from August 2016 until May 2017.
4.
By correspondence dated 26 July 2017, the Claimant put the Respondent in
default of payment of EUR 108,000, setting a time limit of 10 days in order to
remedy the default.
5.
On 30 August 2017, completed on 15 September 2017, 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 108,000,
corresponding to 6 monthly salaries of EUR 18,000 each from December 2016 until
May 2017.
6.
The Claimant further asked to be awarded 5% interest p.a. as from the dates on
which each of the payments fell due.
7.
In reply to the claim, the Respondent argued that the payments indicated in the
contract were gross and, thus, the total contractual obligation of EUR 210,000
claimed by the Claimant was EUR 189,000 net instead, applying Tax Legislation of
Country D.
8.
Furthermore, the Respondent explained that it had paid the Claimant the total
amount of EUR 78,655 and 193,250, and submitted a number of documents
showing payments apparently made towards the Claimant in relation to his
salaries and bonuses.
9.
Consequently, according to the Respondent, the claim had to be rejected since,
after deducting the above mentioned amounts, the Respondent “owe[d] the
[Claimant] in the net amount of EUR 54,898.57”.
10.
In his replica, the Claimant firstly denied that his salary was gross, since the
contract did not contain any provision in that sense. Furthermore, he
acknowledged having received the payments listed by the Respondent but
pointed out that some of them were related to bonuses and not salaries. More
specifically, the Claimant explained that, out of the above-mentioned payments,
only the following concerned his salary:
Player A, Country B / Club C, Country D
Page 2 of 7
11.
payment of EUR 78,655;
payment of 130,000, dated 21 October 2016;
payment of 9,750, dated 2 May 2017.
Consequently, according to the Claimant, out of the total amount of EUR 210,000
due to him as salaries, the Respondent had paid only EUR 120,000, leaving EUR
90,000 outstanding. Therefore, the Claimant, on 22 November 2017, amended his
claim, asking that the Respondent be ordered to pay to him overdue payables in
the amount of EUR 90,000, plus interest as follows:
a. 5% p.a. on EUR 18,000 “on 30th January 2017”;
b. 5% p.a. on EUR 18,000 “as of 28th February 2017”;
c. 5% p.a. on EUR 18,000 “on March 30th 2017”;
d. 5% p.a. on EUR 18,000 “on April 30th 2017”;
e. 5% p.a. on EUR 18,000 “as of May 30th 2017”.
12.
In spite of having been invited to do so, the Respondent did not present its final
comments on the matter.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: Chamber or 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 August
2017. Consequently, the 2017 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b
of the Regulations on the Status and Transfer of Players (edition 2018), it is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country B
and a Club of Country D.
3.
Furthermore, the DRC 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 2018) and considering that the present claim was lodged on 30 August
2017, the 2016 edition of said regulations (hereinafter: 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 DRC entered into the substance of the matter. In this respect, the
DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation on file. However, the Chamber emphasized
Player A, Country B / Club C, Country D
Page 3 of 7
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 DRC acknowledged that the Claimant and the Club of
Country D, Club E, signed an employment contract valid as from 6 January 2016
until 31 May 2019.
6.
Furthermore, the members of the Chamber observed that, on 25 August 2016, the
Claimant, Club E and the Respondent signed a contract, pursuant to which the
Claimant was loaned to the Respondent as from 25 August 2016 until 31 May
2017.
7.
In continuation, the Chamber noted that, in accordance with the contract, the
Respondent undertook to pay to the Claimant, inter alia, EUR 30,000 “as advance
payment”, and EUR 180,000 in 10 equal monthly instalments of EUR 18,000 to be
paid the 30th day of each month (28th in February) as from August 2016 until May
2017.
8.
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 108,000, corresponding to 6 monthly salaries of EUR 18,000 each as from
December 2016 until May 2017.
9.
In this context, the DRC took particular note of the fact that, on 26 July 2017, the
Claimant put the Respondent in default of payment of the amount of EUR
108,000, setting a 10 days’ time limit in order to remedy the default.
10.
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).
11.
Subsequently, the DRC took into account that the Respondent, for its part, argued
that the salaries due to the Claimant were gross and, as such, taxes were to be
deducted. Moreover, the Respondent claimed having remitted to the Claimant the
amount of EUR 78,655 and 193,250. The members of the Chamber further noted
that such sums concerned both salary and bonus entitlements.
12.
In continuation, the DRC noted that the Claimant, in his replica, denied that his
salary was gross and acknowledged having received the payments listed by the
Respondent. However, the DRC took note that the Claimant pointed out that,
given that some of those payments were related to bonuses rather than salaries,
out of the total amount of EUR 210,000 due to him as salaries, the Respondent
had paid only EUR 120,000, leaving EUR 90,000 outstanding.
Player A, Country B / Club C, Country D
Page 4 of 7
13.
In relation to the above, the members of the Chamber observed that the
Claimant, on 22 November 2017, amended his claim, asking that the Respondent
be ordered to pay to him overdue payables in the amount of EUR 90,000, plus
interest as follows:
a. 5% p.a. on EUR 18,000 “on 30th January 2017”;
b. 5% p.a. on EUR 18,000 “as of 28th February 2017”;
c. 5% p.a. on EUR 18,000 “on March 30th 2017”;
d. 5% p.a. on EUR 18,000 “on April 30th 2017”;
e. 5% p.a. on EUR 18,000 “as of May 30th 2017”.
14.
Furthermore, the DRC highlighted that the Respondent did not contest the
Claimant’s replica that the payments it had made, some of which in Currency of
Country D, total EUR 120,000 in relation to his salary.
15.
Having said this, the DRC acknowledged that, in accordance with the contract, the
Respondent was obliged to pay to the Claimant, inter alia, the amount of EUR
180,000 in 10 equal monthly instalments of EUR 18,000 to be paid the 30 th day of
each month (28th in February) from August 2016 until May 2017, plus EUR 30,000
as “advance payment”.
16.
Furthermore, the members of the Chamber observed that the contract does not
stipulate whether the Claimant’s financial entitlements were net or gross. In this
respect, the DRC deemed important to recall art. 12 par. 3 of the Procedural Rules,
in accordance with which any party claiming a right on the basis of an alleged fact
shall carry the burden of proof and deemed that the Respondent had not
presented any documentation which would demonstrate that such amounts were
to be considered gross or which amount or percentage was to be deducted from
the monthly payments.
17.
On account of the aforementioned considerations, the documentary evidence
provided by the parties and the fact that the Respondent did not reply to the
Claimant’s replica, the DRC established that the Respondent failed to remit the
Claimant’s remuneration in the total amount of EUR 90,000.
18.
In addition, the Chamber established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
19.
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 90,000.
20.
In addition, taking into consideration the Claimant’s request, the members of the
Chamber decided to award the Claimant interest on the above-mentioned
amount as follows:
-
5% p.a. on the amount of EUR 18,000 as from 31 January 2017 until the date
of effective payment;
Player A, Country B / Club C, Country D
Page 5 of 7
-
5% p.a. on the amount of EUR 18,000 as from 1 March 2017 until the date of
effective payment;
5% p.a. on the amount of EUR 18,000 as from 31 March 2017 until the date of
effective payment;
5% p.a. on the amount of EUR 18,000 as from 1 May 2017 until the date of
effective payment;
5% p.a. on the amount of EUR 18,000 as from 31 May 2017 until the date of
effective payment.
21.
In continuation, taking into account the consideration under number II./18. 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.
22.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations it 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 decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
23.
In this respect, the Chamber 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.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay overdue payables in the amount of EUR 90,000
to the Claimant w ithin 30 day s as from the date of notification of this decision.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, interest of 5% p.a. as follows:
- 5% p.a. on the amount of EUR 18,000 as from 31 January 2017 until the date of
effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 1 March 2017 until the date of
effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 31 March 2017 until the date of
effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 1 May 2017 until the date of
effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 31 May 2017 until the date of
effective payment.
4.
In the event that the amount plus interest due to the Claimant are not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
Player A, Country B / Club C, Country D
Page 6 of 7
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
5.
Any further claim of the Claimant is rejected.
6.
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
of every payment received.
7.
A warning is imposed on the Respondent.
*****
Note relating to the m otiv ated decis ion (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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
Page 7 of 7