DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 4 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 20 February 2018, 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 the date of signature until 20 November 2018.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a monthly salary of EUR 10,000 net “payable on 5th of every month”.
3.
After previously having put the Respondent in default on two occasions, by
correspondence dated 6 December 2018, the Claimant put the Respondent in default
of payment of EUR 50,000 setting a time limit expiring a 10 days’ time limit in order
to remedy the default.
4.
On 21 December 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 50,000 corresponding to his outstanding salaries from July until
November 2018 (5 * EUR 10,000).
5.
The Claimant further asks to be awarded interest of 5% p.a. as from the due dates.
6.
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 21 December 2018. Consequently, the 2018 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
employment-related dispute with an international dimension between a Player of
Country B and 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 June 2018), and considering that the present claim was lodged on 21
Player A, Country B / Club C, Country D
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December 2018, the June 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 the Claimant and the
Respondent signed an employment contract valid as from 20 February 2018 until 20
November 2018, in accordance with which the Claimant was entitled to receive from
the Respondent a monthly salary of EUR 10,000 net “payable on 5th of every month”.
6.
In continuation, the DRC judge duly noted that 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 50,000, corresponding to his
outstanding salaries from July until November 2018 (5 * EUR 10,000).
7.
In this context, the DRC judge took particular note of the fact that, on 6 December
2018, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a 10 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 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
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant a monthly salary of EUR 10,000 net.
Player A, Country B / Club C, Country D
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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 50,000 corresponding to salaries from July until November 2018 (EUR 10,000
each month).
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 EUR 50,000.
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 to award the
Claimant interest on the above-mentioned amount as follows:
-
5% p.a. over the amount of EUR 10,000 as from 6 July 2018 until the date of
effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 August 2018 until the date
of effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 September 2018 until the
date of effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 October 2018 until the
date of effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 November 2018 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 by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that the Respondent did not reply to the claim of the Claimant,
Player A, Country B / Club C, Country D
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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 50,000, the DRC judge regarded a fine amounting to CHF 7,500
as appropriate and hence decided to impose said fine on the Respondent.
19.
In this connection, 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 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 EUR 50,000.
3.
Within the s am e deadline, the Respondent has to pay to the Claimant interest as
follows:
-
5% p.a. over the amount of EUR 10,000 as from 6 July 2018 until the date of
effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 August 2018 until the date
of effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 September 2018 until the
date of effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 October 2018 until the
date of effective payment;
-
5% p.a. over the amount of EUR 10,000 as from 6 November 2018 until the
date of effective payment.
4.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned numbers 2 and 3 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.
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 7,500. 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. 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
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:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, Country B / Club C, Country D
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