DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 23 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 20 May 2017, 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 (hereinafter: the contract) valid as from the date of
signature until 30 November 2017.
2.
In accordance with the contract, the Respondent undertook to pay to the
Claimant inter alia the amount of USD 20,000 “to be paid at the end of July” and
USD 60,000 in six monthly salaries of USD 10,000 from June 2017 to November
2017.
3.
By correspondence dated 16 January 2018, the Claimant put the Respondent in
default of payment of USD 80,000 setting a 10 days’ time limit in order to remedy
the default.
4.
On 17 December 2017, 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 80,0000 corresponding to:
- USD 60,000 corresponding to his salaries as from June 2017 until November 2017
(i.e. 10,000*6);
- USD 20,000 corresponding to the payment due at the end of July (cf. point 2
above).
5.
The Respondent submitted its response to the claim after notification of the
closure of the investigation in the present matter.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 17
December 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of
the 2017 and 2018 editions of the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b
of the Regulations on the Status and Transfer of Players (edition 2018), it is
competent to deal with the matter at stake, which concerns an employmentrelated dispute with an international dimension between a Player of Country B
and a Club of Country D.
3.
Furthermore, the DRC analyzed 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
(editions 2016 and 2018) and considering that the present claim was lodged on 17
Player A, Country B / Club C, Country D
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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 DRC and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation on file. However, the Chamber emphasized
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 on 20 May 2017 the Claimant and
the Respondent signed an employment contract valid as from the date of
signature until 30 November 2017.
6.
In continuation, the Chamber noted that in accordance with the contract, the
Respondent undertook to pay to the Claimant inter alia the amount of USD
20,000 “to be paid at the end of July” and USD 60,000 in six monthly salaries of
USD 10,000 each from June 2017 to November 2017.
7.
The DRC further observed that, on 17 December 2017, 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 80,000
corresponding to:
- USD 60,000 corresponding to his salaries as from June 2017 until November 2017
(i.e. 10,000*6);
- USD 20,000 corresponding to the payment due at the end of July.
8.
In this context, the DRC took particular note of the fact that, on 16 January 2018,
the Claimant put the Respondent in default of payment of the amount of USD
80,000 setting a 10 days’ time limit 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).
10.
Subsequently, the DRC observed that the Respondent, for its part, in spite of
having been invited to do so, failed to present its response to the claim of the
Claimant within the relevant time-limit. In fact, a reply of the Respondent was
only received after the investigation-phase of the matter had already been
concluded. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as
the Chamber’s constant jurisprudence in this regard, the DRC decided not to take
into account the reply of the Respondent and established that, in accordance with
art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those
documents on file that were provided prior to the closure of the investigationphase, in casu, upon the statements and documents presented by the Claimant.
Player A, Country B / Club C, Country D
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11.
Having said this, the DRC acknowledged that, in accordance with the contract, the
Respondent undertook to pay to the Claimant inter alia the amount of USD
20,000 “to be paid at the end of July” and USD 60,000 in six monthly salaries of
USD 10,000 each from June 2017 to November 2017.
12.
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 USD 80,000
corresponding to his salaries from June 2017 until November 2017 (USD 60,000)
and the USD 20,000 corresponding to the payment due at the end of July.
13.
In addition, the Chamber established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
14.
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 USD 80,000.
15.
In continuation, taking into account the consideration under number II./12. 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.
16.
The DRC 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 Chamber
highlighted that, on 19 May 2017 and 27 November 2017, the Respondent had
already been found to have delayed a due payment for more than 30 days
without a prima facie contractual basis and without the Respondent having
responded to the relevant claims, as a result of which fines had been imposed on
the Respondent by the DRC. Consequently, the Chamber established that the
Respondent has delayed a due payment for more than 30 days without a prima
facie contractual basis and without having answered to the claim for the third
time.
17.
Moreover, 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.
18.
Bearing in mind the considerations under numbers II./14, II./15 and II./16. 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.
Player A, Country B / Club C, Country D
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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 80,000
to the Claimant w ithin 30 day s as from the date of notification of this decision.
3.
In the event that the aforementioned amount is not paid 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.
5.
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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