DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 14 March 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
A, country B
represented by Mr xxxxx
as Claimant
against the club,
B, country S
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 22 January 2015, the player from B, A (hereinafter: Claimant), and the club from S, B
(hereinafter: Respondent) signed an employment contract valid as from the date of
signature until 21 January 2018.
2.
On 30 June 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 EUR 227,499 in the following two instalments: EUR 151,666 “shall be paid
immediately” and EUR 75,833 on or before 5 September 2015.
3.
By correspondence dated 22 January 2016, the Claimant put the Respondent in default
of payment of EUR 75,833 relating to the instalment due on 5 September 2015, setting a
time limit expiring on 1 February 2016 in order to remedy the default.
4.
On 5 February 2016, 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 75,833 corresponding to the full outstanding balance, in accordance
with the settlement agreement.
5.
The Claimant further asks to be awarded 5% interest p.a. as of 6 September 2015 as well
as the amount of “20% on the value of the conviction” pertaining to legal fees.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
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 5
February 2016. 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 B and a club from S.
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
Player A, country B / Club B, country S
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considering that the present claim was lodged on 5 February 2016, 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 EUR 227,499 in the following two
instalments: EUR 151,666 “shall be paid immediately” and EUR 75,833 on or before 5
September 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 EUR 75,833
corresponding to the full outstanding balance in relation with the instalment payable
until 5 September 2015.
7.
In this context, the DRC judge took particular note of the fact that, on 22 January 2016,
the Claimant put the Respondent in default of payment of the aforementioned amount,
setting a time limit expiring on 1 February 2016 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, 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.
10.
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.
Player A, country B / Club B, country S
Page 3 of 6
11.
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 EUR 75,833 on or before 5 September
2015.
12.
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.
13.
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 EUR
75,833, corresponding to the second instalment of the termination agreement.
14.
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.
15.
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 EUR 75,833.
16.
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 EUR 75,833, as from 6 September
2015 until the date of effective payment.
17.
Furthermore, as regards the claimed legal fees, the DRC judge referred to art. 18 par. 4
of the Procedural Rules as well as to the long-standing and well-established
jurisprudence of the Dispute Resolution Chamber, in accordance with which no
procedural compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the DRC judge decided to reject the Claimant’s
request relating to legal fees.
18.
In continuation, taking into account the consideration under number II./14. 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 25 February 2016, the Respondent had already been found to have
delayed a due payment for more than 30 days without a prima facie contractual basis
Player A, country B / Club B, country S
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and without the Respondent having responded to the relevant claim, as a result of
which a fine had been imposed on the Respondent by the Single Judge of the Players’
Status Committee.
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 severe penalty.
21.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as well
as the considerations under numbers II./19. and II./20. above, the DRC judge decided to
impose a more severe fine on the Respondent in accordance with art. 12bis par. 4 lit. c)
of the Regulations. Furthermore, taking into consideration the amount due of EUR
75,833 as well as the aggravating circumstance of a repeated offence, the DRC judge
regarded a fine amounting to CHF 30,000 as appropriate and hence decided to impose
said fine on the Respondent.
III.
Decision of the DRC judge
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, 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 75,833, plus interest
at the rate of 5% p.a. as from 6 September 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.
Any further request filed by the Claimant is rejected.
5.
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.
6.
The Respondent is ordered to pay a fine in the amount of CHF 30,000. 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.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
Player A, country B / Club B, country S
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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:
Marco Villiger
Acting Deputy Secretary General
Encl: CAS directives
Player A, country B / Club B, country S
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