DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 28 April 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
Alejandro Maron (Argentina), member
on the claim presented by the player,
A, country C
represented by xxxx
as Claimant
against the club,
B, country U
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 1 January 2015, the player from country C, A (hereinafter; the Claimant or the
player) and the club from country U, B (hereinafter; the Respondent or the club)
entered into an employment contract valid as of the date of its signature until 31
December 2019.
2.
According to clause 3.1. of the contract, the Claimant was entitled to receive from the
Respondent “the salary in the sum, stated in CI.1 of the Appendix No. 1”.
3.
On an unspecified date, the parties concluded an “Appendix No. 1 to the contract
dated 1 January 2015” (hereinafter; the appendix) which clause CI.1 provided as
follows: “[The Respondent] undertakes to pay the salary to the football player in the
sum equivalent to 130,000 (One hundred and thirty Thousand) euro (…) per month”.
4.
Moreover, clause CI.4 of the appendix reads as follows: “The club undertakes to pay
the bonus for goal or assist in the sum equivalent to 10,000 (ten thousand) euro…”.
5.
By correspondence dated 1 February 2016, the Claimant put the Respondent in
default of payment of EUR 510,000 granting the Respondent a 10 days’ deadline in
order to remedy the default.
6.
On 25 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 510,000, plus 5% interest p.a. as of the due dates detailed as follows:
a.
b.
c.
d.
e.
f.
g.
EUR 70,000 as part of his salary of April 2015;
EUR 70,000 as part of his salary of May 2015;
EUR 70,000 as part of his salary of June 2015;
EUR 80,000 as part of his salary of July 2015;
EUR 50,000 as part of his salary of August 2015;
EUR 70,000 as bonuses for “scored goals and assists” for April 2015;
EUR 100,000 as bonuses for “scored goals and assists” for May 2015.
7.
The Claimant further requested to be awarded reimbursement of legal expenses and
procedural costs.
8.
In particular, the Claimant explained that on 14 August 2015, he was transferred on a
definitive basis to the club, XY, and that at the moment of his transfer, the
Respondent owed him the requested amounts.
9.
Despite having been asked to do so, the Respondent did not reply to the claim.
Player A, country C / Club B, country U
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II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or the 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
25 February 2016. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter; the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 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), the Dispute Resolution Chamber is competent to deal with the matter at stake,
which concerns an employment-related dispute with an international dimension
between a player from country C and a club from country U.
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 25 February 2016, the
2015 edition of said regulations (hereinafter; the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and documentation on file. However, the DRC 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 as of 1 January 2015 until 31 December 2019
and that, on an unspecified date, they concluded an appendix in accordance with
which the Claimant was entitled to receive from the Respondent, inter alia, a monthly
salary of EUR 130,000.
6.
Equally, the members of the Chamber took note of clause CI.4 of the appendix which
reads as follows: “The club undertakes to pay the bonus for goal or assist in the sum
equivalent to 10,000 (ten thousand) euro…”.
Player A, country C / Club B, country U
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7.
Subsequently, the Chamber observed 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 510,000 corresponding to part of his salaries
as of April until August 2015 as well as bonuses for goals scored and assists.
8.
In this context, the DRC took particular note of the fact that, on 1 February 2016, the
Claimant put the Respondent in default of payment of the aforementioned amounts,
setting a time limit of 10 days in order to remedy the default.
9.
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).
10.
In continuation, 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 members of the Chamber considered that the Respondent
renounced its right to defence. Consequently, the DRC concurred that in accordance
with art. 9 par. 3 of the Procedural Rules, it 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 acknowledged that, in accordance with the employment
contract and the appendix provided by the Claimant, the Respondent was obliged to
pay to the Claimant a monthly salary of EUR 130,000 as well as EUR 10,000 for each
goal scored and assist.
12.
Furthermore, taking into account the documentation presented by the Claimant in
support of his petition, the DRC concluded that the Claimant had not fully
substantiated his claim pertaining to overdue payables with pertinent documentary
evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no
supporting documentation relating to the Claimant’s claim pertaining to the alleged
bonuses for goals scored and assists. Consequently, the Chamber decided to reject the
Claimant’s claim relating to said bonuses.
13.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the DRC established that the Respondent failed to remit
the Claimant’s remuneration in the total amount of EUR 340,000 corresponding to
part of his salaries as of April until August 2015.
Player A, country C / Club B, country U
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14.
In addition, the members of the Chamber 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 EUR 340,000.
16.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on each of the relevant amounts as of
the day following the day on which the relevant payments fell due, until the date of
effective payment.
17.
Furthermore, in relation to the claimed legal expenses and procedural costs, the DRC
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 decided to reject said Claimant’s request.
18.
Moreover, the Chamber decided that any further request filed by the Claimant is
rejected.
19.
In continuation, taking into account the consideration under number II./14. above,
the members of 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.
20.
Along those lines, the DRC 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 of
the Claimant, the DRC 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 340,000, the Chamber regarded a fine amounting to CHF
20,000 as appropriate and hence decided to impose said fine on the Respondent.
21.
In connection with the above, the DRC 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 C / Club B, country U
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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, within 30 days as from the date of
notification of this decision, overdue payables in the amount of EUR 340,000, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
5% p.a. on the amount of EUR 70,000 as from 1 May 2015;
5% p.a. on the amount of EUR 70,000 as from 1 June 2015;
5% p.a. on the amount of EUR 70,000 as from 1 July 2015;
5% p.a. on the amount of EUR 80,000 as from 1 August 2015;
5% p.a. on the amount of EUR 50,000 as from 1 September 2015.
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 of every
payment received.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 20,000. 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 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
Player A, country C / Club B, country U
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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:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, country C / Club B, country U
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