DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 29 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (USA), member
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 31 August 2016, the Claimant and the Respondent signed an employment
contract, valid as from 31 August 2016 until 30 June 2017.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia ten monthly salary payments of EUR 1,025 each, the first
payment falling due on 15 October 2016 and the other ones in the following
months.
3.
By correspondence dated 2 February 2018, the Claimant put the Respondent in
default of payment of the amount of EUR 4,100, plus 5% interest p.a. as from the
due dates, setting a 10 days’ time limit in order to remedy the default.
4.
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
4,100, according to the Claimant corresponding to the outstanding salaries for the
months of March, April, May and June 2017, plus 5% interest p.a. until the effective
date of payment as follows:
5% interest p.a. on the amount of EUR 1,025 as from 1 April 2017;
5% interest p.a. on the amount of EUR 1,025 as from 1 May 2017;
5% interest p.a. on the amount of EUR 1,025 as from 1 June 2017;
5% interest p.a. on the amount of EUR 1,025 as from 1 July 2017.
5.
Despite being invited to do so, the Respondent did not reply to the claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 22 February
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).
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
Player A, Country B / Club C, Country D
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conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2018), 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 of Country B and a Club of Country D.
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
2018), and considering that the present claim was lodged on 22 February 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 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 members of the Chamber acknowledged that, on 31 August
2016, the Claimant and the Respondent entered into a contract valid for the period
between 31 August 2016 and 30 June 2017.
6.
The Chamber further acknowledged that pursuant to said contract, the Respondent
undertook to pay to the Claimant 10 monthly salary payments of EUR 1,025 each,
the first one due on 15 October 2016 and the other ones in the following months.
7.
Furthermore, the DRC took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue payables
towards him in the amount of EUR 4,100, which corresponds to the monthly salaries
for the months of March, April, May and June 2017.
8.
In this context, the members of the DRC took particular note of the fact that, on 2
February 2018, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a time limit of 10 days in order to remedy the
default.
9.
Consequently, the DRC 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).
Player A, Country B / Club C, Country D
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10.
Subsequently, the Chamber 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 considered that the Respondent renounced its
right to defence and thus accepted the allegations of the Claimant.
11.
Furthermore, as a consequence of the aforementioned consideration, the members
of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural
Rules, they shall take a decision upon the basis of the documents on file, in other
words, upon the statements and documents presented by the Claimant.
12.
Having said this, the DRC acknowledged that, in accordance with the contract
signed by and between the parties, the Respondent was inter alia obliged to pay to
the Claimant the salaries for March, April, May and June 2017 in the amount of EUR
1,025 each, due on the 15th day of the following month.
13.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
14.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
4,100 in accordance with the contract concluded between the parties.
15.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
16.
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 4,100.
17.
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 each of the relevant
payment(s) as of the day following the day on which the relevant payment(s) fell
due, until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./15. 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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19.
The Chamber established that in virtue of the aforementioned article, it has
competence to impose sanctions on the Respondent. In this context, the members of
the Chamber highlighted that on 2 November 2015 and 4 May 2016, the
Respondent had already been found to have delayed a due payment for more than
30 days without a prima facie contractual basis and, on 4 May 2016, without the
Respondent having responded to the relevant claim, as a result of which a fine was
imposed on the Respondent by the Dispute Resolution Chamber. Consequently, the
Chamber established that, for the third time, the Respondent has delayed a due
payment for more than 30 days without a prima facie contractual basis.
20.
In this context, the DRC 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.
21.
Bearing in mind the considerations under numbers II./18. and II./19. above, the DRC
decided that in the event that the Respondent does not pay the amount due to the
Claimant within the 30 days following the notification of the present decision, a
ban from registering any new players, either nationally or internationally, for the
next entire registration period following the notification of the present decision
shall become effective on the Respondent in accordance with art. 12bis par. 4 lit. d)
of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially 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 EUR 4,100,
plus interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 1,025 as from 16 April 2017;
b. 5% p.a. on the amount of EUR 1,025 as from 16 May 2017;
c. 5% p.a. on the amount of EUR 1,025 as from 16 June 2017;
d. 5% p.a. on the amount of EUR 1,025 as from 16 July 2017.
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.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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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 Dispute
Resolution Chamber of every payment received.
6.
In the event that the amount due to the Claimant is not paid by the Respondent
within 30 days as from the date of notification of this decision, the Respondent shall
be banned from registering any new players, either nationally or internationally, for
the next entire registration period following the notification of the present
decision.
*****
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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives
Player A, Country B / Club C, Country D
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