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 4 July 2013, 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 its date of signature until 30 June 2016.
2.
According to the Claimant, the parties signed various documents by means of which
they mutually terminated the employment contract and agreed on several payment
plans of the amounts to be paid by the Respondent to the Claimant. On 17 March
2017, the parties eventually signed a compensation agreement to specify the
remaining amounts due by the Respondent to the Claimant (hereinafter:
agreement).
3.
In accordance with article 2 the agreement, the Respondent undertook to pay to the
Claimant the total amount of EUR 96,700 in 9 instalments as follows:
EUR 12,000 on 30 April 2017;
EUR 12,400 on 30 May 2017;
EUR 12,400 on 30 June 2017;
EUR 12,400 on 30 July 2017;
EUR 12,400 on 30 August 2017;
EUR 12,400 on 30 September 2017;
EUR 7,400 on 30 October 2017;
EUR 7,400 on 30 November 2017;
EUR 7,900 on 30 December 2017.
Furthermore, in article 3 of the agreement the parties agreed upon the following
clause: “If Club C does not pay on time and as agreed two consecutive of the
mentioned instalments in par. 2, then the total remaining amount will become due
and payable, under the condition that the player would have notified an
extrajudicial statement-call, by which he will describe the due amount and he will
set a final deadline of 15 calendar days for the payment. In this case, the date on
which the remaining amount will automatically become due and payable, will be
considered the 16th day following the notification of the extrajudicial statement and
an amount of 2,500€ will be due and payable as well by Club C for the extrajudicial
costs.”
4.
Following previous default notices, by correspondence dated 4 October 2017,
received by the Respondent on 26 October 2017, the Claimant granted the
Respondent 15 days to pay the outstanding debt relating to the instalments due as
of 30 May 2017. In the same correspondence, the Claimant highlighted that in the
absence of payment, he would be entitled to ask for immediate payment of the
total remaining amount due in accordance with art. 3 of the agreement.
Player A, Country B / Club C, Country D
Page 2 of 8
5.
By correspondence dated 15 December 2017, the Claimant put the Respondent in
default of payment of the amount of EUR 81,200, setting a 15 days’ time limit in
order to remedy the default.
6.
On 1 December 2017, completed on 2 January 2018, 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 81,200, corresponding to the
remaining part of the second instalment, due on 30 May 2017, as well as the full
subsequent instalments due between 30 June and 30 December 2017 and the
amount of EUR 2,500 relating to contractual extrajudicial costs in accordance with
the agreement (cf. point I./3. par. 2 above).
7.
In this respect, the Claimant explained that the Respondent only paid him the
following amounts:
EUR 6,000 on 8 June 2017, corresponding to the first part of the amount due
on 30 April 2017;
EUR 6,000 on 7 August 2017, corresponding to the second part of the amount
due on 30 April 2017;
EUR 6,000 on 1 September 2017, corresponding to part of the amount due on
30 May 2017.
8.
Therefore, in view of the contents of article 3 of the agreement, according to the
Claimant, as from 10 November 2017, all the remaining amounts under the
compensation agreement were due.
9.
The Claimant further asks to be awarded interest of 5% p.a. “as from the successive
days of the date that the amounts were contractually due” until the date of
effective payment.
10.
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 1 December 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 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
Player A, Country B / Club C, Country D
Page 3 of 8
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 1 December
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 4 July 2013 until 30 June
2016. Moreover, the DRC judge acknowledged that, on 17 March 2017, the Claimant
and the Respondent signed the agreement according to which the Respondent
undertook to pay to the Claimant the total amount of EUR 96,700 in 9 instalments as
follows:
EUR 12,000 on 30 April 2017;
EUR 12,400 on 30 May 2017;
EUR 12,400 on 30 June 2017;
EUR 12,400 on 30 July 2017;
EUR 12,400 on 30 August 2017;
EUR 12,400 on 30 September 2017;
EUR 7,400 on 30 October 2017;
EUR 7,400 on 30 November 2017;
EUR 7,900 on 30 December 2017.
6.
The DRC judge further recalled that according to art. 3 of the agreement, an
additional EUR 2,500 would fall due relating to extrajudicial costs in the event of,
inter alia, the Respondent failing to remit the instalments in accordance with the
agreement.
7.
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
81,200, corresponding to the remaining part of the second instalment, due on 30
May 2017, as well as the full subsequent instalments due between 30 June and 30
December 2017 and the amount of EUR 2,500 relating to contractual extrajudicial
costs in accordance with the agreement.
Player A, Country B / Club C, Country D
Page 4 of 8
8.
In addition, the DRC judge underlined that, by correspondence dated 4 October
2017, received by the Respondent on 26 October 2017, the Claimant granted the
Respondent 15 days to pay the outstanding debt relating to the instalments due as
of 30 May 2017. In the same correspondence, the Claimant highlighted that in the
absence of payment, he would be entitled to ask for immediate payment of the total
remaining amount due in accordance with art. 3 of the agreement. In this respect,
and bearing in mind the contents of art. 3 of the agreement, the DRC judge agreed
with the Claimant’s argument that in the event of non-payment, as from 10
November 2017, all the remaining amounts under the agreement would have fallen
due.
9.
In this context, the DRC judge took particular note of the fact that, on 15 December
2017, the Claimant put the Respondent in default of payment of the amount of EUR
81,200, setting a 15 days’ time limit in order to remedy the default.
10.
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).
11.
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.
12.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concluded 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.
13.
Having said this, the DRC judge recalled the contractual terms set out in the
agreement and 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’s receivables in accordance with the
agreement in the total amount of EUR 81,200, corresponding to (i) the remaining
part of the second instalment, due on 30 May 2017, as well as (ii) the full subsequent
instalments due between 30 June and 30 December 2017 and (iii) the amount of EUR
2,500 relating to contractual extrajudicial costs.
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.
Player A, Country B / Club C, Country D
Page 5 of 8
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
overdue payables in the total amount of EUR 81,200.
17.
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. as follows:
on the amount of EUR 6,400 as of 31 May 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 1 July 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 31 July 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 31 August 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 1 October 2017 until the date of effective
payment;
on the amount of EUR 7,400 as of 31 October 2017 until the date of effective
payment;
on the amount of EUR 7,400 as of 1 December 2017 until the date of effective
payment;
on the amount of EUR 7,900 as of 31 December 2017 until the date of
effective payment;
on the amount of EUR 2,500 as of 11 November 2017 until the date of
effective payment.
18.
In continuation, 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 by 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 9 November 2017 and 21 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 with the Respondent having
responded to the relevant claims.
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 more severe penalty.
21.
Bearing in mind that the Respondent has not replied to the claim of the Claimant as
well as the considerations under numbers II./19. and II./20. above, the DRC judge
Player A, Country B / Club C, Country D
Page 6 of 8
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 81,200, the DRC judge regarded a fine amounting to CHF 10,000 as appropriate
and hence decided to impose said fine on the Respondent.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is 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 81,200,
plus interest at the rate of 5% p.a. as follows:
on the amount of EUR 6,400 as of 31 May 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 1 July 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 31 July 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 31 August 2017 until the date of effective
payment;
on the amount of EUR 12,400 as of 1 October 2017 until the date of effective
payment;
on the amount of EUR 7,400 as of 31 October 2017 until the date of effective
payment;
on the amount of EUR 7,400 as of 1 December 2017 until the date of effective
payment;
on the amount of EUR 7,900 as of 31 December 2017 until the date of
effective payment;
on the amount of EUR 2,500 as of 11 November 2017 until the date of
effective payment.
3.
In the event that the aforementioned amount 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.
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.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 10,000. 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:
Player A, Country B / Club C, Country D
Page 7 of 8
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
Page 8 of 8