DRC Overdue Payables
Texto da decisão
.
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 6 April 2018,
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 18 July 2015, the Player of Country B, Player A (hereinafter: the Claimant),
and the Club of Country D, Club C (hereinafter: the Respondent), signed an
employment contract valid as from the date of signature until 30 June 2017.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant a monthly salary of USD 5,000. (hereinafter: the termination
agreement)
3.
On 7 June 2017, the Claimant and the Respondent signed an agreement “on
the termination” of the employment contract of 18 July 2015.
4.
In accordance with the termination agreement, the Respondent undertook to
pay USD 25,000 to the Claimant until 31 October 2017.(hereinafter: the
termination agreement)
5.
Following a previous notice dated 25 November 2017, by correspondence dated
25 January 2018, the Claimant put the Respondent in default of payment of
USD 25,000 setting a 10 day time limit in order to remedy the default.
6.
On 15 January 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 USD 25,000, due to him in accordance with the
termination agreement.
7.
The Claimant further asks to be awarded interest of 5% p.a. as of 1 November
2017 until the date of effective payment.
8.
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 15 January 2018. Consequently, the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the
matter at hand (cf. art. 21 of the Procedural Rules).
Player A, Country B / Club C, Country D
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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 a Club of Country D.
3.
Furthermore, the DRC judge analyzed 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 2018), and considering that the present claim was
lodged on 15 January 2018, the 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 of 18 July 2015 and
subsequently on 7 June 2017 the parties signed the termination agreement, in
accordance with which the Claimant was entitled to receive from the
Respondent the amount of USD 25,000 until 31 October 2017.
6.
The DRC judge noted that on 15 January 2018 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 USD 25,000,
corresponding to the amount set out in the termination agreement.
7.
In this context, the DRC judge took particular note of the fact that, on 25
January 2018, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a ten 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
Player A, Country B / Club C, Country D
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9.
have granted a deadline of at least ten days for the debtor club to comply with
its financial obligation(s).
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
termination agreement provided by the Claimant, the Respondent was obliged
to pay to the Claimant the amount of USD 25,000 until 31 October 2017.
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 USD 25,000, as provided by the termination agreement.
14.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than thirty 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 USD 25,000.
16.
In continuation, 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 USD 25,000 as from 1 November 2017, until the date of effective
payment.
17.
In continuation, taking into account the consideration under number II./14.
above, the DRC 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.
Player A, Country B / Club C, Country D
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18.
Moreover, the DRC judge established that, in virtue of art. 12bis par. 4 of the
Regulations, he has competence to impose sanctions on the Respondent. In this
context, the DRC judge highlighted that, on 8 March 2018, the Respondent had
already been found to have delayed a due payment for more than thirty days
without a prima facie contractual basis, as a result of which a warning had been
imposed on the Respondent by the Dispute Resolution Chamber.
19.
Furthermore, the DRC judge referred to art. 12bis par. 6 of the Regulations,
which establishes that a repeated offence will be considered as an aggravating
circumstance and lead to more severe penalty.
20.
Bearing in mind that the Respondent did not reply to the claim of the Claimant
as well as the considerations under numbers II./14., II./17. and II./18. above, 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
due amount of USD 25,000 as well as the aggravating circumstance of a
repeated offence, the DRC judge regarded a fine amounting to CHF 5,000 as
appropriate and, hence, decided to impose said fine on the Respondent.
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, w ithin 30 day s as from the
date of notification of this decision, overdue payables in the amount of USD
25,000, plus interest at the rate of 5% p.a. as from 1 November 2017 until the
date of effective payment.
3.
In the event that the amount due to the Claimant, plus interest, 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.
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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5.
The Respondent is ordered to pay a fine in the amount of
CHF 5,000. 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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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