DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 18 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 5 June 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the
Club of Country D, Club C (hereinafter: the Respondent) concluded an employment
contract (hereinafter: the contract), valid as from 1 August 2016 until 31 May 2017.
2.
According to clause 5 of the contract, the Claimant was entitled to a total
remuneration of “81,60,000”, stipulated to be equivalent to USD “1,20,000”.
3.
By correspondence dated 27 November 2017, the Claimant put the Respondent in
default of payment of 3,489,500 granting 10 days in order to remedy the default.
4.
On 19 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 3,489,500 corresponding to outstanding remuneration, plus 5% interest
p.a. as from 31 May 2017.
5.
Moreover, the Claimant explained that the Respondent acknowledged the
aforementioned debt via a document signed by the Respondent’s Chief Operating
Officer on 21 September 2017.
6.
In its reply, the Respondent confirmed the existence of its debts towards the Claimant,
but explained that during the year 2017, its financial condition was “affected”.
Nevertheless, the Respondent expressed its will to pay the debt towards the Claimant
for the amount of “34,89,500” once it will regain financial stability, a process that,
according to the Respondent, “will take around 12 months”.
7.
Consequently, the Respondent requested to be sentenced to pay the amount of
“34,89,500” without interest within 12 months in view of its financial condition “in
the interest of justice, equity and fair conscience”.
8.
In his replica, the Claimant insisted to be paid the amount of 3,489,500 and explained
that this amount corresponds to the amount of “34,89,500” as expressed by the
Respondent, since the latter used the Short Scale of Country D.
9.
In addition, the Claimant considered that he cannot be held liable for the
Respondent’s alleged financial problems.
10.
As final comments, the Respondent explained that its bank accounts were frozen by
the local authorities and requested additional time to pay the amount of “34,89,500”
to the Claimant.
Player A, Country B / Club C, Country D
Page 2 of 6
II.
Cons iderations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to
as 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
19 December 2017. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2017 and 2018
editions of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 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 analysed 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 (editions
2016 and 2018), and considering that the present claim was lodged on 19 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 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, on 5 June 2016, the parties at
stake signed an employment contract, valid as from 1 August 2016 until 31 May 2017
and that, according to clause 5 of the contract, the Claimant was entitled to a total
remuneration of “81,60,000”, stipulated to be equivalent to USD “1,20,000”.
6.
In continuation, the DRC judge duly noted 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 3,489,500, corresponding to the
employment contract as well as to the letter apparently issued by the Respondent, as
stated above.
7.
Moreover, the DRC judge noted that, according to the Claimant, the Respondent
acknowledged the aforementioned debt via a document signed by the Respondent’s
Chief Operating Officer on 21 September 2017.
Player A, Country B / Club C, Country D
Page 3 of 6
8.
In this context, the DRC judge took particular note of the fact that, on 27 November
2017, 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 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 have granted
a deadline of at least ten days for the debtor club to comply with its financial
obligation(s).
11.
Subsequently, the DRC judge observed that the Respondent had, for its part,
acknowledged the existence of its debts towards the Claimant, but that it explained
that, during the year 2017, its financial condition was “affected”. The DRC judge took
note of the Respondent’s acknowledgement to pay the amount of “34,89,500” once
it will regain financial stability, a process that, according to the Respondent, “will take
around 12 months”.
12.
In reference to the aforementioned argument, the DRC judge noted the Claimant’s
allegation, according to which he cannot be held liable for the Respondent’s alleged
financial problems.
13.
In this respect, the DRC judge understood, in accordance with its longstanding
jurisprudence as well as with the principle of pacta sunt servanda that the Respondent’s
financial condition and the alleged consequences thereof could not be held against the
Claimant, who had no influence whatsoever on these processes and bore no responsibility
in this regard.
14.
As a consequence, the DRC judge established that the Respondent should pay to the
Claimant the outstanding amount of 3,489,500.
15.
For the sake of clarity, the DRC judge took note of the Respondent’s allegation,
according to which said amount would correspond to “34,89,500” .
16.
In this respect, the DRC judge understood that the difference of 3,489,500 and
“34,89,500” are only different ways to express the same amount (depending on
whether the Numbering System of Country D is used) and that, consequently, the
Respondent’s allegation had no relevance in relation to the due amount.
Nevertheless, for the sake of clarity, the DRC judge wished to underline that the
outstanding amount of 3,489,500 corresponds, in letters, to “three million, four
hundred eighty-nine thousand and five hundred.”
17.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
18.
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 3,489,500.
Player A, Country B / Club C, Country D
Page 4 of 6
19.
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 said amount as from the relevant due date
(i.e. 1 June 2017) until the date of effective payment.
20.
In continuation, taking into account the previous considerations, the DRC judge
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.
21.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent replied to the claim of the Claimant, the DRC judge decided to impose a
sanction on the Respondent in accordance with art. 12bis par. 4 lit. a) of the
Regulations. On this basis and taking into consideration the circumstances of the
current matter and the amount in dispute, the DRC judge regarded a warning as
appropriate and hence decided to impose said warning on the Respondent.
22.
In this respect, the DRC judge 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.
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 3,489,500, plus 5%
interest p.a. over said amount as from 1 June 2017 until the date of effective payment.
3. In the event that the amount plus interest 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. 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.
5. A warning is imposed on the Respondent.
*****
Player A, Country B / Club C, Country D
Page 5 of 6
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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