DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 11 April 2019,
by Jon New m an (USA), 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
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I. Facts of the cas e
1. On 1 November 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 15 January 2018 until 15 December 2018.
2. According the contract, the Claimant was entitled to a monthly salary in the amount of
USD 6,000, “payable on or before the 10“, day of each calendar month.”
3. Moreover, in accordance with clause 6 of the contract, the Claimant was entitled to “a) 2
(two) round-trip economy class air ticket, from his country of residence to Country D and
back to his country of residence”
4. On 4 February 2019, the Claimant put the Respondent in default of payment for the total
amount of USD 44,299.10, setting a 10 days’ time limit in order to remedy the default.
5. On 17 January 2019, 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 44,299.10, plus 5% interest p.a., detailed as follows:
-
USD 3,000, corresponding to the month of January 2018 (Half Salary);
USD 6,000, corresponding to the month of June 2018;
USD 6,000, corresponding to the month of July 2018;
USD 6,000, corresponding to the month of August 2018;
USD 6,000, corresponding to the month of September 2018;
USD 6,000, corresponding to the month of October 2018;
USD 6,000, corresponding to the month of November 2018;
USD 3,000, corresponding to the month of December 2018 (Half Salary);
USD 2,299.10, corresponding to flight tickets.
6. In its reply to the claim, the Respondent stated that “[it] would like to acknowledge that
the claim by [the Claimant] is payable by [it].” Within this context, the Claimant explained
that it is in “a very bad financial situation and [is] unable to pay the total amount
outright”, and offered to settle its debt in several instalments.
7. In his replica, the Claimant insisted in his claim and considered that it cannot be held
liable for the Respondent’s lack of financial planning, and underlined that both parties
agreed on the existence of a debt.
8. As final comments, the Respondent highlighted its “bad financial situation” and
proposed to pay the total debt of USD 44,299.10, in 10 instalments of USD 4,429.91 each,
from June 2019 until March 2020.
Player A, Country B / Club C, Country D
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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
17 January 2019. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 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 June 2018),
and considering that the present claim was lodged on 17 January 2019, the June 2018
edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand
as to the substance with a value of less than CHF 100,000.
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 emphasized 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 1 November 2017, the Claimant
and the Respondent signed an employment contract, valid as from 15 January 2018 until
15 December 2018, by means of which the Respondent acknowledged that it had an
obligation to pay the Claimant a monthly salary in the amount of USD 6,000, “on or
before the 10“, day of each calendar month.”, as well as flight tickets in accordance with
clause 6 of the contract (cf. point I. 3 above).
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, corresponding to the total amount of EUR 44,299.10, corresponding to one
partial salary in January 2018, his entire salaries from June 2018 until November 2018, as
well as to a partial salary in December 2018, and also including the amount of USD
2,299.10, corresponding to flight tickets.
7. In this context, the DRC judge took particular note of the fact that, on 4 February 2019,
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.
Player A, Country B / Club C, Country D
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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 have granted a
deadline of at least ten days for the debtor club to comply with its financial obligation(s).
9. Subsequently, the DRC judge observed that the Respondent acknowledged that it had a
debt towards the Claimant as requested in his statement of claim, i.e. USD 44,299.10, but
that it requested to settle it in several instalments of USD 4,429.91 each, from June 2019
until March 2020.
10. In this regard, the DRC judge further noted that the Claimant insisted in his claim and
considered that it cannot be held liable for the Respondent’s lack of financial planning,
and underlined that both parties agreed on the existence of a debt.
11. In this respect, the DRC judge concurred that, in accordance with the principle of pacta
sunt servanda, the parties are expected to comply with their obligations as contractually
stipulated.
12. On account of the documentation on file, the DRC judge concluded that the Claimant
had substantiated his claim pertaining to overdue payables with sufficient documentary
evidence and that the existence of the debt was acknowledged by the Respondent.
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
44,299.10, as contractually agreed between the parties.
14. 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.
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 44,299.10.
16. 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 day following the
respective due dates of each instalment until the date of effective payment.
17. 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.
18. 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
Player A, Country B / Club C, Country D
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warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
Taking into consideration that this constitutes its first offence in overdue payables, the
DRC judge regarded the imposition of a warning as appropriate.
19. 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 USD 44,299.10, plus 5%
interest p.a., calculated as follows:
- 5% p.a. over the amount of USD 3,000 as from 11 February 2018 until the date of
effective payment;
- 5% p.a. over the amount of USD 6,000 as from 11 July 2018 until the date of effective
payment;
- 5% p.a. over the amount of USD 6,000 as from 11 August 2018 until the date of
effective payment;
- 5% p.a. over the amount of USD 6,000 as from 11 September 2018 until the date of
effective payment;
- 5% p.a. over the amount of USD 6,000 as from 11 October 2018 until the date of
effective payment;
- 5% p.a. over the amount of USD 6,000 as from 11 November 2018 until the date of
effective payment;
- 5% p.a. over the amount of USD 6,000 as from 11 December 2018 until the date of
effective payment;
- 5% p.a. over the amount of USD 3,000 as from 11 January 2019 until the date of
effective payment.
3.
In the event that the aforementioned amount plus interest due to the Claimant is not
paid by the Respondent within the stated time limit, the present matter shall be
submitted 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 are 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
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*****
Note relating to the m otiv ated decis ion (legal remedy):
According to art. 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 (CAS)
Avenue de Beaumont 2
CH-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:
Emilio García Silvero
Chief Legal Officer
Player A, Country B / Club C, Country D
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