DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 7 April 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
A, country U
represented by Mr xxxxxx
as Claimant
against the club,
B, country T
represented by Mr xxxxxx
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 21 January 2015, the player from country U, A (hereinafter: Claimant), and the club
from country T, B (hereinafter: Respondent) signed an employment contract valid as
from 21 January 2015 until 31 May 2018, which was terminated at the end of the 201415 season.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the amount of xxxxxx (xxx) 66,500 for the 2014-15 season as follows:
a. 5 monthly salaries of xxx 2,500 each, as from 5 February until 5 June 2015,
totaling xxx 12,500;
b. xxx 54,000 during the 18 match period of the 2014-15 season (18 matches x xxx
3,000 per match).
Note: under “special clauses” the contract stipulates that 100% of the match
payment is made if the player is in the starting eleven, 75% if the player comes off
the bench and 50% if he is not fielded in first league matches, payable the latest at
the end of the season.
3.
By correspondence dated 16 November 2015, the Claimant put the Respondent in
default of payment of the amount of xxx 57,500 setting a 10 days’ time limit in order to
remedy the default.
4.
On 5 November 2015, and completed on 1 December 2015, 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 xxx 57,500 corresponding to xxx 12,500 in
salaries and xxx 45,000 in bonuses for 5 matches in which he was in the starting eleven, 4
matches in which he came off the bench and 8 matches in which he was not fielded.
5.
The Claimant further asked to be awarded interest as from the respective due dates of
payment as well as that the Respondent pay his legal fees.
6.
In reply to the claim, the Respondent held that it paid the Claimant’s remuneration in
full. In this respect, the Respondent emphasised that the Claimant was entitled to
receive the total amount of xxx 37,500 for the 2014-15 season, i.e. xxx 12,500 in salaries
and xxx 25,000 in bonuses for 5 matches in which he was in the starting eleven and 4
matches in which he came off the bench.
7.
The Respondent stated that it paid the amount of xxx 36,563.35 to the Claimant and it
presented various receipts in this respect.
II.
Considerations of the DRC judge
Player A, country U / Club B, country T
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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 5
November 2015. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural
Rules) are 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 2015) he is
competent to deal with the matter at stake, which concerns an employment-related
dispute with an international dimension between a player from country U and a club
from country T.
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 2015), and
considering that the present claim was lodged on 5 November 2015, the 2015 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 21 January 2015 until 31 May 2018, which
was terminated at the end of the 2014-15 season. In accordance with this contract the
Claimant was entitled to receive from the Respondent, inter alia, the amount of xxx
12,500 in salary and xxx 54,000 in per match payments, the final amount of which was
dependent on the level of participation of the Claimant in matches.
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 xxx 57,500
corresponding to xxx 12,500 in relation to salary and xxx 45,000 regarding per match
payments.
7.
In this context, the DRC judge took particular note of the fact that, on 16 November
2015, the Claimant put the Respondent in default of payment of the aforementioned
amount, setting a 10 days’ time limit in order for the Respondent to remedy the default.
Player A, country U / Club B, country T
Page 3 of 6
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).
8.
Subsequently, the DRC judge took into account that the Respondent, for its part, held
that it has paid the Claimant’s remuneration in full, emphasising that the Claimant was
entitled to receive the total amount of xxx 37,500 for the 2014-15 season, i.e. xxx 25,000
in match bonuses and xxx 12,500 in salaries.
9.
The Respondent further maintained that it has paid the amount of xxx 36,563.35 to the
Claimant and it presented various receipts in this respect.
9.
In this regard, and taking into account the documentation presented by the Respondent
in its defence, the DRC judge decided to partially accept the arguments put forward by
the Respondent. Indeed, in accordance with the documentation submitted by the
Respondent it can be noted that it paid xxx 36,563.35 to the Claimant. On the other
hand, the DRC judge noted that the Respondent has not commented on the Claimant’s
claim relating to the amount of xxx 12,000 for the 8 matches in which he was not fielded
and for which the Claimant provided documentary evidence.
10.
On the basis of the documents on file, the DRC judge established that the Claimant was
entitled to receive the total amount of xxx 48,500 from the Respondent, i.e. xxx 12,500
in salary and xxx 36,000 for per match payments (TRY 12,000 for 8 matches in which the
Claimant was not fielded, xxx 15,000 for 5 matches for which he was in the starting
eleven and xxx 9,000 for 4 matches in which he entered the field off the bench), and
that the Respondent has paid xxx 36,563.35 to the Claimant.
11.
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 xxx
11,936.65.
12.
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.
13.
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 xxx 11,936.65.
14.
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. on the amount of xxx 11,936.65 as from 5 November
2015 until the date of effective payment. In this regard, the DRC judge pointed out that
on the basis of the documents on file it was not possible to distinguish the various
Player A, country U / Club B, country T
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payments included in the total outstanding amount of xxx 11,936.65 and their respective
due dates.
15.
Furthermore, as regards the claimed legal expenses, the DRC judge referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural 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 expenses.
16.
In continuation, taking into account the consideration under number II./12. 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.
17.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Moreover, DRC judge recalled that
the Respondent has previously been found by the Dispute Resolution Chamber and the
DRC judge to have neglected its contractual obligations towards players on multiple
occasions in the recent past. Therefore, 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 xxx 11,936.65, the DRC judge regarded a
fine amounting to CHF 1,000 as appropriate and hence decided to impose said fine on
the Respondent.
18.
In this respect, 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.
Decision of the DRC judge
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, has to pay to the Claimant, within 30 days as from the date of
notification of this decision, overdue payables in the amount of xxx 11,936.65 plus
interest of 5% p.a. as from 5 November 2015 until the date of effective payment.
3.
In the event that the amount due to the Claimant 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.
Any further request filed by the Claimant is rejected.
Player A, country U / Club B, country T
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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.
6.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 1,000. The fine is to be paid within 30 days of notification of the present decision
to FIFA to the following bank account with reference to case nr.:
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 motivated decision (legal remedy):
According to article 67 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:
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, country U / Club B, country T
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