DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 5 April 2019,
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 4 January 2017, the player from 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 signature until 31
May 2019.
2.
On 20 December 2017, the Claimant and the Respondent signed a
termination agreement, in accordance with which the latter undertook to
pay to the Claimant the amount of EUR 500,000 in 11 instalments of EUR
40,000 each and 1 instalment of EUR 60,000, falling due, respectively, on: 31
January, 28 February, 30 March, 30 April, 31 May, 29 June, 31 July, 31 August,
28 September, 31 October, 30 November and 31 December 2018.
3.
On 25 September 2018, the Dispute Resolution Chamber (DRC) passed a
decision on the claims lodged by the Claimant between 3 April and 16 July
2018, concerning the first 5 instalments of the termination agreement,
awarding the latter EUR 200,000 and imposing a warning on the Respondent.
4.
On 12 February 2019, the DRC passed a second decision on the claims lodged
by the Claimant between17 September 2018 and 12 November 2018,
concerning the seventh, the eighth and ninth instalment of the termination
agreement, awarding the latter EUR 120,000 and imposing a fine on the
Respondent.
5.
By correspondences dated, respectively, 31 July 2018, 5 December 2018, 10
January 2019 and 31 January 2019, the Claimant put the Respondent in
default of payment of EUR 40,000 in the first three instances and of EUR
60,000 in the last – totalling an amount of EUR 180,000 – consisting of the
sixth, tenth, eleventh and twelfth instalment of the termination agreement,
setting each time a time limit of 10 days in order to remedy the default.
6.
Between 18 December 2018 and 13 February 2019, the Claimant lodged 4
separate claims against the Respondent in front of FIFA asking that the latter
be ordered to pay to him overdue payables in the total amount EUR 180,000,
corresponding to the sixth, tenth, eleventh and twelfth instalment of the
termination agreement, plus 5% interest p.a. “as from the moment of
outstanding payment […] and till the complete cancellation of the debt”.
7.
In spite of having been invited to do so, the Respondent did not reply to the
claims.
Player A, Country B / Club C, Country D
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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 18 December 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 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 employmentrelated dispute with an international dimension between a player from
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 matter was
lodged on 18 December 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 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 4
January 2017, the Claimant and the Respondent signed an employment
contract valid as from the date of signature until 31 May 2019.
6.
Furthermore, the members of the Chamber observed that, on 20 December
2017, the Claimant and the Respondent signed a termination agreement,
pursuant to which the Respondent undertook to pay to the Claimant the
Player A, Country B / Club C, Country D
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amount of EUR 500,000 in 11 instalments of EUR 40,000 each and 1
instalment of EUR 60,000, falling due, respectively, on: 31 January, 28
February, 30 March, 30 April, 31 May, 29 June, 31 July, 31 August, 28
September, 31 October, 30 November and 31 December 2018.
7.
In continuation, the DRC took note that the Claimant lodged 4 additional
separate claims against the Respondent in front of FIFA, maintaining that the
latter has overdue payables towards him in the total amount of EUR 180,000,
corresponding to the sixth, tenth, eleventh and twelfth instalment of the
termination agreement. In this respect, the members of the Chamber
observed that, in light of the specific circumstances of the case and due to
reasons of procedural economy, said claims were merged into one.
8.
In this context, the members of the Chamber took particular note of the fact
that, on 31 July 2018, 5 December 2018, 10 January 2019 and 31 January
2019, the Claimant put the Respondent in default of payment of EUR 40,000
in the first three instances and of EUR 60,000 in the last, consisting of the
sixth, tenth, eleventh and twelfth instalment of the termination agreement,
setting each time a time limit of 10 days 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 Chamber observed 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
Chamber concurred that, in accordance with art. 9 par. 3 of the Procedural
Rules, it shall take a decision upon the basis of the documents already on file,
in other words, upon the statements and documents presented by the
Claimant.
12.
On account of the aforementioned considerations, the DRC established that
the Respondent failed to remit the Claimant’s remuneration in the amount of
EUR 180,000, corresponding to the sixth, tenth, eleventh and twelfth
instalment due in accordance with the termination agreement.
Player A, Country B / Club C, Country D
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13.
In addition, the DRC established that the Respondent had delayed a due
payment for more than thirty days without a prima facie contractual basis.
14.
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 EUR 180,000.
15.
In addition, taking into account the Claimant’s request, the DRC decided that
the Respondent must pay to the Claimant interest at the rate of 5% p.a. on
the relevant instalments as of the first day following the day on which each
instalment fell due.
16.
Furthermore, taking into account the consideration under number II./13.
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 than
thirty days without a prima facie contractual basis may be sanctioned in
accordance with art. 12bis par. 4 of the Regulations.
17.
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 DRC
highlighted that, on 25 September 2018, 26 November 2018, 12 February
2019 and 22 February 2019 the Respondent had already been found to have
delayed a due payment for more than 30 days without a prima facie
contractual basis, as a result of which a warning, a reprimand and two
consecutive fines, respectively, had been imposed on the Respondent by the
DRC.
18.
Having said that, the Chamber established that, in the present matter, the
Respondent is found to have delayed a due payment for more than 30 days
without a prima facie contractual basis for the 5th time.
19.
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 a more severe penalty.
20.
Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art.
12bis paras 7 and 8 of the Regulations, the DRC decided that the Respondent
shall be banned from registering any new players, either nationally or
internationally, for one entire registration period. The execution of this
registration ban is suspended during a probationary period of six months
following the notification of the present decision. If the Respondent commits
another infringement during the six months’ probationary period, the
suspension is automatically revoked and the registration ban executed.
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 to the Claimant, w ithin 30 day s as from
the date of notification of this decision, overdue payables in the amount of
EUR 180,000, plus 5% interest p.a. as follows:
a.
on the amount of EUR 40,000 as from 30 June 2018 until the date of
effective payment;
b. on the amount of EUR 40,000 as from 1 November 2018 until the date of
effective payment;
c.
on the amount of EUR 40,000 as from 1 December 2018 until the date of
effective payment;
d. on the amount of EUR 60,000 as from 1 January 2019 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 of every payment received.
5.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for one entire registration period. The execution
of this registration ban is suspended during a probationary period of six
months following the notification of the present decision. If the Respondent
Player A, Country B / Club C, Country D
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commits another infringement during the probationary period, the
suspension is automatically revoked and the registration ban executed.
*****
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:
Emilio García Silvero
Chief Legal Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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