DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 12 April 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player 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 case
1.
On 1 September 2014, the player from country B, Player A (hereinafter: Claimant),
and the club from country D, Club C (hereinafter: Respondent) signed an
employment contract valid as from the date of signature until 31 May 2015.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a monthly salary of EUR 22,500.
3.
By correspondence dated 10 February 2016, the Claimant put the Respondent in
default of payment of EUR 17,500 corresponding to part of the Claimant’s “last
monthly salary” setting a 10 days’ time limit in order to remedy the default.
4.
On 5 February 2016, and completed on 24 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 EUR 17,500 corresponding
to “part of the last salary payment”.
5.
The Claimant further asks to be awarded interest “from the actual payment date, 30
June 2015” and that the Respondent be ordered to pay legal fees and procedural
costs.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Considerations 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 5 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 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 B and a club from country D.
Player A, country B / Club C, country D
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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 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 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, DRC judge acknowledged that the Claimant and the Respondent
signed an employment contract valid from 1 September 2014 until 31 May 2015, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, a monthly salary of EUR 22,500.
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 EUR
17,500 corresponding to “part of the last salary payment”.
7.
In this context, the DRC judge took particular note of the fact that, on 10 February
2016, the Claimant put the Respondent in default of payment of his “last monthly
salary”, setting a time limit expiring on 20 February 2016 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.
Player A, country B / Club C, country D
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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 22,500.
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 17,500, corresponding to part of the Claimant’s “last monthly salary”.
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 17,500.
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 that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
17,500, as from 30 June 2015 until the date of effective payment.
17.
Furthermore, as regards the claimed legal expenses and procedural costs, the DRC
judge referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the DRC, 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. Furthermore, in this context, the DRC judge
highlighted that according to art. 18 par. 2 of the Procedural Rules, DRC proceedings
relating to employment-related disputes between a club and a player of an
international dimension are free of charge.
18.
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
Player A, country B / Club C, country D
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prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4
of the Regulations.
19.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent did not reply to the claim of the Claimant and that the Respondent has
previously been found by the Dispute Resolution Chamber have neglected its
contractual obligations towards players on multiple occasions in the recent past, the
DRC judge decided to impose a fine on the Respondent in accordance with art. 12bis
par. 4 lit. c) of the Regulations. On this basis and taking into consideration the
amount due of EUR 17,500, the DRC judge regarded a fine amounting to CHF 4,000
as appropriate and hence decided to impose said fine on the Respondent.
20.
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, Player A, is partially 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 17,500, plus
interest at the rate of 5% p.a. as from 30 June 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.
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 4,000. 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. xxxxxxxxxxx:
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 B / Club C, country D
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