DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 23 March 2017,
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 29 January 2016, the Player of Country B, Player A (hereinafter: Claimant),
and the Club of Country D, Club C (hereinafter: Respondent) signed an
employment contract valid as from 1 February 2016 until 30 November 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant, inter alia, a monthly salary of USD 20,000 within the 7th day of
the following month.
3.
By correspondence dated 10 January 2017, the Claimant put the Respondent in
default of payment of USD 40,000 relating to his salaries for October and
November 2016, setting a time limit expiring on 25 January 2017 in order to
remedy the default.
4.
On 10 February 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 USD 40,000, corresponding to the monthly salaries of
October and November 2016.
5.
The Claimant further asks to be awarded interest of 5% on the amount of USD
20,000 as from 7 November 2016 and on the amount of USD 20,000 as from 7
December 2016.
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 10 February 2017. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(edition 2017; 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 2016) he is competent to deal with the matter at stake, which
Player A, Country B / Club C, Country D
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concerns an employment-related dispute with an international dimension
between a Player of Country B and a Club of 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 2016), and considering that the present claim was lodged on 10
February 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 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 the Claimant and the
Respondent signed an employment contract valid as from 1 February 2016 until
30 November 2016, in accordance with which the Claimant was entitled to
receive from the Respondent, inter alia, a monthly salary of USD 20,000.
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 40,000, corresponding to the monthly salaries of October and
November 2016.
7.
In this context, the DRC judge took particular note of the fact that, on 10 January
2017, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a time limit expiring on 25 January 2017 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.
Player A, Country B / Club C, Country D
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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 on file, in other words,
upon the statements and documents presented by the Claimant.
11.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to
pay to the Claimant the amount of USD 40,000.
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 USD 40,000 corresponding to the months of October and November
2016.
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 USD 40,000.
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 USD
20,000 as from 8 November 2016 and on the amount of USD 20,000 as from 8
December 2016 until the date of effective payment.
17.
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.
18.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. Therefore, and bearing
in mind that the Respondent did not reply to the claim of the Claimant, 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
Player A, Country B / Club C, Country D
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amount due of USD 40,000, the DRC judge regarded a fine amounting to CHF
5,000 as appropriate and hence decided to impose said fine on the Respondent.
19.
In this respect, 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 partially 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
40,000, plus interest at the rate of 5% p.a. as follows:
- on the amount of USD 20,000 as from 8 November 2016 until the date of
effective payment;
- on the amount of USD 20,000 as from 8 December 2016 until the date of
effective payment.
3.
In the event that the amount due to the Claimant plus interest 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.
Player A, Country B / Club C, Country D
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6.
The Respondent is ordered to pay a fine in the amount of
CHF 5,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account:
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 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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