DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 12 April 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
A, country S
represented by Mr xxxx
as Claimant
against the club,
B, country I
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 20 August 2014, the player from country S, A (hereinafter: Claimant), and the club
from country I, B (hereinafter: Respondent), signed an employment contract valid as
“from the beginning of the season in 2014-2015 until the end of the sports season in
2014-2015”.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia xxxx (xxx) 140,000,000 “per season, inclusive of salary,
accommodation and food”, as follows:
xxx 60,000,000 “upon the signing the contract”;
xxx 40,000,000 “upon the termination of the contract”;
xxx 40,000,000 “at the end of phase 2”.
3.
By correspondence dated 8 February 2016, the Claimant put the Respondent in default
of payment of xxx 140,000,000, which according to the Claimant is USD 126,540,
corresponding to the full remuneration under the terms of the contract, setting a 10
days’ time limit in order to remedy the default.
4.
On 2 February 2016, and completed on 21 February 2016, 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 USD 126,540 corresponding to the total
remuneration of the contract.
5.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 2 February 2016.
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 referred to art. 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) it is competent to deal
with the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country S and an club from country I.
Player A, country S / Club B, country I
Page 2 of 6
3.
Furthermore, the Chamber 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 of Players (edition 2015), and
considering that the present claim was lodged on 2 February 2016, 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 and the applicable regulations having been established, the
Chamber 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 emphasised 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 the Claimant and the Respondent signed
an employment contract valid “from the beginning of the season in 2014-2015 until the
end of the sports season in 2014-2015” in accordance with which the Claimant was
entitled to receive from the Respondent, inter alia, xxx 140,000,000 as remuneration for
the duration of the contract. Furthermore, the Chamber highlighted that according to
the information contained in the Transfer Matching System (TMS), the 2014-2015 season
in Iraq ran from 30 September 2014 until 15 June 2015.
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
140,000,000 corresponding to the total remuneration he was supposed to receive
throughout the duration of the contract.
7.
In this context, the DRC took particular note of the fact that, on 8 February 2016, the
Claimant put the Respondent in default of payment of xxx 140,000,000, which according
to the Claimant is USD 126,540, setting a time limit expiring on 18 February 2016 in
order to remedy the default.
8.
Consequently, the Chamber 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 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 Chamber 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 concurred
that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon
Player A, country S / Club B, country I
Page 3 of 6
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 Chamber acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the Claimant
xxx 140,000,000 as total remuneration for the duration of the contract.
12.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had only partially substantiated his claim
pertaining to overdue payables with pertinent documentary evidence. That is, the
amount to be eventually awarded to the Claimant has to be established in xxx (xxx) in
accordance with the contract and not in US Dollars (USD) as claimed by the Claimant.
13.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the Chamber established that the Respondent failed to remit
the Claimant’s remuneration in the total amount of xxx 140,000,000 corresponding to
the total remuneration the Claimant was supposed to receive for the duration of the
employment contract.
14.
In addition, the DRC established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
15.
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 xxx 140,000,000.
16.
In continuation, taking into account the consideration under number II./14. above, the
Chamber 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 further established that by virtue of art. 12bis par. 4 of the Regulations it 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, the Chamber 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 140,000,000,
the DRC regarded a fine amounting to CHF 15,000 as appropriate and hence decided to
impose said fine on the Respondent.
18.
In this connection, 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 S / Club B, country I
Page 4 of 6
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
The Respondent, B, has to pay to the Claimant overdue payables in the amount of xxx
140,000,000 within 30 days as from the date of notification of this decision.
3.
In 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.
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 Dispute Resolution
Chamber of every payment received.
6.
The Respondent is ordered to pay a fine in the amount of CHF 15,000. 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
Player A, country S / Club B, country I
Page 5 of 6
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
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, country S / Club B, country I
Page 6 of 6