DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 26 April 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (US A), 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 10 August 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
signing until 30 June 2018.
2.
On 19 July 2017, the Claimant and the Respondent signed a termination
agreement, in accordance with which the Respondent undertook to pay to
the Claimant USD 1,750,000 in 4 instalments of USD 437,500 each, falling
due, respectively, on 15 November 2017, 15 March 2018, 15 May 2018 and
15 July 2018.
3.
Following a previous default notice dated 19 November 2017, by
correspondence dated 17 January 2018, the Claimant put the Respondent
in default of payment of USD 437,500, setting a time limit of 10 days in
order to remedy the default.
4.
On 8 December 2017, completed on 29 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 437,500, corresponding to the first instalment of the termination
agreement.
5.
In reply to the claim, the Respondent proposed a settlement agreement,
pursuant to which it undertook to pay “the due amount to [the Claimant]
as follows: (1) 50% of the total amount at the end of March 2018; (2)
Remaining 50% at the end of April 2018”.
6.
On 3 April 2018, the Claimant informed FIFA that the Respondent had “not
fulfilled his engagement to pay 50% of the first instalment […]” and asked
FIFA to take a decision on the matter.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to:
the Chamber or DRC) analysed whether it was competent to deal with the
matter at hand. In this respect, the Chamber took note that the present
matter was submitted to FIFA on 8 December 2017. Consequently, the
Rules Governing the Procedures of the Players’ Status Committee and the
Player A, Country B / Club C, Country D
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Dispute Resolution Chamber (edition 2017; 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 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 8 December 2017, the 2016 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 DRC 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 the 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 10
August 2015, the Claimant and the Respondent signed an employment
contract valid as from the date of signature until 30 June 2018.
6.
Furthermore, the members of the Chamber observed that, on 19 July 2017,
the Claimant and the Respondent signed a termination agreement,
pursuant to which the Respondent undertook to pay to the Claimant USD
1,750,000 in 4 instalments of USD 437,500 each, falling due, respectively,
on 15 November 2017, 15 March 2018, 15 May 2018 and 15 July 2018.
7.
In continuation, 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 total amount of USD 437,500,
corresponding to the first instalment of the termination agreement.
Player A, Country B / Club C, Country D
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8.
In this context, the members of the Chamber took particular note of the
fact that, following a previous default notice dated 19 November 2017, on
17 January 2018 the Claimant put the Respondent in default of payment of
the aforementioned amount, setting a 10 days’ time limit 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.
Subsequently, the DRC took into account that the Respondent, for its part,
recognised the existence of a debt towards the Claimant in the claimed
amount and proposed a settlement agreement, which, however, it did not
fulfil.
11.
Having said this, the Chamber acknowledged that, in accordance with the
termination agreement, the Respondent was obliged to pay to the
Claimant the amount of USD 1,750,000 in 4 instalments of USD 437,500
each, falling due, respectively, on 15 November 2017, 15 March 2018, 15
May 2018 and 15 July 2018.
12.
Taking into account the documentation presented by the Claimant in
support of his petition, the Chamber 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 established
that the Respondent failed to remit the Claimant’s remuneration in the
amount of USD 437,500.
14.
In addition, the DRC established that the Respondent had delayed a due
payment for more than thirty days without a prima facie contractual basis.
15.
Consequently, the Chamber 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 amount of USD 437,500.
16.
Furthermore, 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
Player A, Country B / Club C, Country D
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than thirty days without a prima facie contractual basis may be sanctioned
in accordance with art. 12bis par. 4 of the Regulations.
17.
In this regard, the Chamber established that in virtue of art. 12bis par. 4 of
the Regulations it has competence to impose sanctions on the Respondent.
In this context, the DRC highlighted that, on 11 September 2015, the
Respondent had already been found to have delayed a due payment for
more than 30 days without a prima facie contractual basis and with the
Respondent not having responded to the relevant claim, as a result of
which a fine had been imposed on the Respondent by the DRC.
18.
In this respect, 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.
19.
Bearing in mind that the Respondent has replied to the claim of the
Claimant as well as the considerations under numbers II./17. and II./18.
above, the Chamber decided to impose a more severe fine on the
Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.
Furthermore, taking into consideration the amount due of USD 437,500, as
well as the circumstance of a repeated offense, the DRC regarded a fine
amounting to CHF 30,000 as appropriate and hence decided to impose said
fine on the Respondent.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay overdue payables in the amount of USD
437,500 to the Claimant w ithin 30 day s 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.
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.
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 30,000. 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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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