DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 28 March 2019,
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 6 September 2017, 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 31 May 2020.
2.
On 28 August 2018, 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 USD 12,000 in two instalments as follows: USD 3,000 on 28
August 2018 and USD 9,000 on 30 September 2018.
4.
By correspondence dated 1 November 2018, the Claimant put the Respondent in default
for the payment of the amount of USD 9,000, corresponding to the second instalment set
out in the termination agreement, setting a time limit expiring on 12 November 2018 in
order to remedy the default.
5.
On 7 February 2019, 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
USD 9,000, corresponding to the second instalment of the termination agreement.
6.
The Claimant further asked to be awarded interest of 5% on the aforementioned
amount as from 30 September 2018.
7.
In reply to the claim, the Respondent held that the player “was duly paid as per the
provisions of the contract”. In this respect, in support of its arguments, the Respondent
submitted alleged payment receipts, not translated in an official FIFA language, the most
recent of which appears to be dated 28 August 2018 and refer to the amount of USD
3,000.
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 7
February 2019. 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 7 February 2019, 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 took note that, on 28 August 2018, 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 USD 12,000 in two instalments of
USD 3,000 and USD 9,000, on 28 August 2018 and 30 September 2018 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 USD 9,000,
corresponding to the second instalment set out in the termination agreement.
7.
In this context, the DRC judge took particular note of the fact that, on 1 November 2018,
the Claimant put the Respondent in default of payment of the aforementioned amount,
setting a time limit expiring on 12 November 2018 in order to remedy the default.
8.
Consequently, the DRC judge concluded that the Claimant 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, held
that the Claimant “was duly paid as per the provisions of the contract” and submitted
Player A, Country B / Club C, Country D
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some alleged payment receipts which, however, were not translated in an official FIFA
language.
10.
In this respect, the DRC judge first recalled that, in accordance with art. 9 par. 1 lit. e) of
the Procedural Rules, all documentation provided in the context of a dispute in front of
FIFA should be presented in the original version and, if applicable, translated into one of
the official FIFA languages (English, French, Spanish and German). Bearing in mind the
wording of the aforementioned provision, the DRC judge was eager to emphasise that
the Respondent failed to submit such documents translated into one of the four official
FIFA languages and, therefore, he concluded that said documents could not be taken into
account. What is more, the DRC judge was comforted with such conclusion by the fact
that, however, the apparently most recent receipt submitted by the Respondent seems to
refer to the amount of USD 3,000 and be dated 28 August 2018; therefore it appears to
refer to the first instalment of the termination agreement, rather than to the second.
11.
In view of the aforementioned considerations, the DRC judge concluded that the
arguments raised by the Respondent cannot be considered a valid reason for nonpayment of the monies claimed by the Claimant; in other words, the reasons brought
forward by the Respondent in its defence do not exempt the Respondent from its
obligation to fulfil its contractual obligations towards the Claimant.
12.
Consequently, the DRC judge decided to reject the argumentation put forward by the
Respondent in its defence.
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
9,000, as provided by 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 USD 9,000.
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 USD 9,000 as from 1
October 2018 until the date of effective payment.
17.
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
Player A, Country B / Club C, Country D
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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.
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. In this
context, the DRC judge highlighted that, on 19 March 2019, the Respondent had already
been found to have delayed a due payment for more than 30 days without a prima facie
contractual basis, as a result of which a fine had been imposed on the Respondent by
Single judge of the Players’ Status Committee.
19.
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.
20.
Bearing in mind the considerations under numbers II./18. and II./19. 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 USD 9,000 as well as the aggravating circumstance of the repeated offence, the DRC
judge regarded a fine amounting to CHF 1,500 as appropriate and, hence, decided to
impose said fine on the Respondent.
21.
The DRC judge concluded his deliberations by rejecting any further claim of the Claimant.
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, w ithin 30 day s as from the date of
notification of this decision, overdue payables in the amount of USD 9,000, plus interest at
the rate of 5% p.a. as from 1 October 2018 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 1,500. 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. XXXXXXX/XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
kO
*****
Note relating to the m otiv ated 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:
Emilio García Silvero
Chief Legal Officer
Encl.: CAS directives
Player A, Country B / Club C, Country D
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