DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 8 March 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tefano S artori (Italy ), member
Pav el Piv ov arov (Rus s ia), member
Muzam m il Bin Moham ed (S ingapore), 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 27 January 2015, the player of Country B, Player A (hereinafter: the
Claimant), and the club of Country D, Club C (hereinafter: the Respondent),
signed an employment contract valid as from the date of signature until 31
December 2019.
2.
On 27 May 2016, the Claimant and the Respondent signed an “Additional
Agreement n. 1 to the Contract n. 3 of 27 January 2015” (hereinafter:
settlement agreement).
3.
In accordance with the settlement agreement, the Respondent undertook to
pay to the Claimant EUR 157,000 in “12 monthly equal instalments in the
amount of 13 080,00 […] Euros each payable the 1st day of each month,
starting from the 1st of July 2016 and until the 1st of June 2017”.
4.
By correspondence dated 7 July 2017, the Claimant put the Respondent in
default of payment of EUR 157,000 setting a 10 days’ time limit in order to
remedy the default.
5.
On 8 August 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 157,000 corresponding to the 12 monthly
instalments provided in the settlement agreement.
6.
In spite of having been invited to do so, the Respondent has not replied to
the claim.
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 8
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
employment-related 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
Player A, Country B / Club C, Country D
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of Players (edition 2018) and considering that the present claim was lodged
on 8 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 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, on 27 January 2015, the
Claimant and the Respondent signed an employment contract valid as from
the date of signature until 31 December 2019.
6.
Furthermore, the members of the Chamber observed that, on 27 May 2016,
the Claimant and the Respondent signed a settlement agreement.
7.
In continuation, the Chamber noted that, in accordance with the settlement
agreement, the Respondent undertook to pay to the Claimant EUR 157,000
in “12 monthly equal instalments in the amount of 13 080,00 […] Euros each
payable the 1st day of each month, starting from the 1st of July 2016 and
until the 1st of June 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 157,000, corresponding to the 12 monthly instalments
provided in the settlement agreement.
9.
In this context, the DRC took particular note of the fact that, on 7 July 2017,
the Claimant put the Respondent in default of payment of the amount of
EUR 157,000, 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,
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 considered that the Respondent
renounced its right to defence and thus accepted the allegations of the
Claimant.
12.
Furthermore, as a consequence of the aforementioned consideration, the
DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules
it shall take a decision upon the basis of the documents already on file, in
Player A, Country B / Club C, Country D
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other words, upon the statements and documents presented by the
Claimant.
7.
Having said this, the DRC acknowledged that, in accordance with the
contract, the Respondent was obliged to pay to the Claimant the amount of
157,000 in “12 monthly equal instalments in the amount of 13 080,00 […]
Euros each payable the 1st day of each month, starting from the 1st of July
2016 and until the 1st of June 2017”.
8.
Taking into account the documentation presented by the Claimant in
support of his petition, the Chamber concluded that the Claimant had
substantiated his claim pertaining to overdue payables with sufficient
documentary evidence.
9.
On account of the aforementioned considerations, the DRC established that
the Respondent failed to remit the Claimant’s remuneration in the total
amount of EUR 157,000, corresponding to the 12 monthly instalments
envisaged in the settlement agreement.
10.
In addition, the Chamber established that the Respondent had delayed a
due payment for more than 30 days without a prima facie contractual basis.
11.
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 157,000.
12.
In continuation, taking into account the consideration under number II./10.
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.
13.
The Chamber established that in virtue of the aforementioned article, it has
competence to impose sanctions on the Respondent. In this context, the
members of the Chamber highlighted that on 28 April 2016, on 13 May 2016
and on 5 December 2017, the Respondent had already been found to have
delayed a due payment for more than 30 days without a prima facie
contractual basis and, in all the mentioned occasions, without the
Respondent having responded to the relevant claim, as a result of which a
fine was imposed on the Respondent by the Dispute Resolution Chamber.
Consequently, the Chamber established that, for the fourth time, the
Respondent has delayed a due payment for more than 30 days without a
prima facie contractual basis.
14.
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.
Player A, Country B / Club C, Country D
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15.
Bearing in mind the considerations under numbers II./12. and II./13. above,
the DRC decided that in the event that the Respondent does not pay the
amount due to the Claimant within the 30 days following the notification of
the present decision, a ban from registering any new players, either
nationally or internationally, for the next two registration periods following
the notification of the present decision shall become effective on the
Respondent in accordance with art. 12bis par. 4 lit. d) of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay overdue payables in the amount of EUR
157,000 to the Claimant w ithin 30 day s as from the date of notification of
this decision.
3.
In the event that the event that the amount due to the Claimant is not paid
by the Respondent within the stated time limit, interest at the rate of 5%
p.a. will fall due as of expiry of the aforementioned time limit and 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 of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 75,000. 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
6.
In the event that the amount due to the Claimant is not paid by the
Respondent within 30 days as from the date of notification of this decision,
the Respondent shall be banned from registering any new players, either
nationally or internationally, for the next two registration periods following
the notification of the present decision.
*****
Player A, Country B / Club C, Country D
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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:
Marco Villiger
Chief Legal & Integrity Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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