DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 8 February 2019,
by Philippe Diallo (France), DRC judge,
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 1 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 valid as from the date of the signature until 31 December
2016.
2.
On 31 March 2017, the Claimant and the Respondent signed a document titled
“Anexe to the agreement on the termination of the contract of 01.02.2014”
(hereinafter: the termination agreement), by means of which the Respondent
undertook the obligation to pay to the Claimant the amount of USD 30,000,
corresponding to “outstanding salaries, bonuses, the costs for surgery and recovery
and any other compensation due to [the Claimant]”, by no later than 1 March 2018.
3.
On 18 February 2018, the Claimant put the Respondent in default of payment of
USD 30,000 corresponding to the amount established in the termination agreement,
setting a deadline of 10 days to remedy the default.
4.
On 27 November 2018, the Claimant lodged a claim against the Respondent in front
of FIFA asking that the Respondent be ordered to pay to him the overdue payable in
the total amount of USD 30,000 in accordance with the termination agreement.
5.
Furthermore, the Claimant requested to be awarded interest of 5% p.a. as from 1
March 2018 until the date of effective payment.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Cons iderations 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 27 November 2018. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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
2018) 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.
Player A, Country B / Club C, Country D
Page 2 of 6
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 2018), and considering that the present claim was lodged on 27 November
2018, the 2018 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 noted that the Claimant and the Respondent signed
an employment contract valid as from 1 February 2014 until 31 December 2016.
6.
Subsequently, the DRC judge acknowledged that on 31 March 2017, the Claimant
and the Respondent signed a termination agreement by means of which the
Respondent undertook the obligation to pay the Claimant the amount of USD
30,000, corresponding to “outstanding salaries, bonuses, the costs of surgery and
recovery and any other compensation due to [the Claimant]”, by no later than 1
March 2018.
7.
It was duly noted by the DRC judge that 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 30,000 corresponding to the amount
established in the termination agreement due on 1 March 2018.
8.
In this context, the DRC judge took particular note of the fact that on 18 September
2018, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a deadline of 10 days for payment.
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.
In continuation, the DRC judge 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 DRC judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
Player A, Country B / Club C, Country D
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11.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take
a decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
12.
Having said this, the DRC judge acknowledged that, in accordance with the
termination agreement provided by the Claimant, the Respondent was obliged to
pay to the Claimant the total amount of USD 30,000, by no later than 1 March 2018.
13.
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.
14.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant the payment in the amount of USD
30,000, corresponding to the amount established in the termination agreement, due
on 1 March 2018.
15.
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.
16.
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 the
overdue payable in the total amount of USD 30,000.
17.
Subsequently, the DRC judge took into account the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber regarding interest, and decided
that the Respondent must pay to the Claimant interest of 5% p.a., however, as of
the day following the day on which the relevant payment(s) fell due i.e. as from 2
March 2018 and until the date of effective payment.
18.
In addition to that, taking into account the consideration under number II./15.
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.
19.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. In this context, the DRC
judge highlighted that, on 8 March 2018 and 6 April 2018, the Respondent had
already 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
last claim i.e. decision dated 6 April 2018, as a result of which a warning and a fine
had been imposed on the Respondent by the DRC and DRC judge, respectively.
Player A, Country B / Club C, Country D
Page 4 of 6
20.
Moreover, the DRC judge 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 several penalty.
21.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as
well as the considerations under number II./19. and II./20. above, the DRC judge
decided to impose a more severe fine on the Respondent in accordance with art.
12bus par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the
amount due of USD 30,000 as well the aggravating circumstance of a repeated
offence, the DRC judge regarded a fine amounting to CHF 7,500 as appropriate and
hence decided to impose said fine on the Respondent.
22.
In this context, 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.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, the overdue payable in the amount of USD
30,000, plus interest at the rate of 5% p.a. as from 2 March 2018 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.
Player A, Country B / Club C, Country D
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5.
The Respondent is ordered to pay a fine in the amount of
CHF 7,500. The fine is to be paid w ithin 30 day s of notification of the present
decision to FIFA to the following bank account with reference to case nr. XXXXXXX:
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 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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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