DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 26 March 2018,
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 30 June 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 July 2016 until 30 June 2018.
2.
On 31 August 2016, the Claimant and the Respondent signed an agreement
(hereinafter: the termination agreement) by means of which they terminated
the employment contract with immediate effect.
3.
In accordance with the termination agreement, the Respondent undertook to
pay the Claimant the amount of EUR 24,000 in three instalments of EUR 8,000
each, on the following dates respectively: 30 September 2016, 30 November
2016 and 31 January 2017.
4.
By correspondence dated 3 May 2017, the Claimant put the Respondent in
default for the payment of the amount of EUR 8,500, corresponding to the last
instalment set out in the termination agreement, in the amount of EUR 8,000,
plus EUR 500 for interest and reimbursement of the legal expenses, setting a
10 days’ time limit in order to remedy the default.
5.
On 2 January 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, asking that the Respondent be ordered to pay him overdue
payables in the amount of EUR 8,000, corresponding to the last instalment of
the termination agreement, payable on 31 January 2017.
6.
The Claimant further asked to be awarded interest of 5% on the
aforementioned amount as from 31 January 2017. Furthermore, the Claimant
requested the payment of “all the costs” of his claim.
7.
In spite of having been invited to do so, the Respondent did not reply 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 2 January 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).
Player A, Country B / Club C, Country D
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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 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 2018), and considering that the present claim was
lodged on 2 January 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 acknowledged that, on 31 August 2016, the
Claimant and the Respondent signed a termination agreement, in accordance
with which the Claimant was entitled to receive from the Respondent the
amount of EUR 24,000 in three instalments of EUR 8,000 each, on 30
September 2016, 30 November 2016 and 31 January 2017 respectively.
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 8,000, corresponding to the last instalment set out in the
termination agreement.
7.
In this context, the DRC judge took particular note of the fact that, on 3 May
2017, the Claimant put the Respondent in default of payment, inter alia, of the
aforementioned amount, setting a ten days’ time limit 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
Player A, Country B / Club C, Country D
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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.
11.
Having said this, the DRC judge acknowledged that, in accordance with the
last instalment of the termination agreement provided by the Claimant, the
Respondent was obliged to pay to the Claimant the amount of EUR 8,000.
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 EUR 8,000, as provided by the last instalment of the termination
agreement.
14.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than thirty 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 8,000.
16.
In continuation, 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 8,000 as from 1 February 2017 until the date of effective
payment.
17.
Moreover, with regard to the claimed legal costs, the DRC judge referred to
art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural
Player A, Country B / Club C, Country D
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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 costs.
18.
Furthermore, 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.
With the above in mind, 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 considering 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 amount due of EUR 8,000, the DRC
Judge regarded a fine amounting to CHF 1,000 as appropriate and, hence,
decided to impose said fine on the Respondent.
20.
Furthermore, 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, overdue payables in the amount of EUR
8,000, plus interest at the rate of 5% p.a. as from 1 February 2017 until the date
of effective payment.
3.
In the event that the aforementioned amount plus interest is not paid to the
Claimant 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 claim lodged 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 1,000. 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. XXX:
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
Country D
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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