DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 18 April 2019,
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 (formerly known as Club D), Country E
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On an unspecified date, the player of Country B, Player A (hereinafter: Claimant),
and the club of Country E, Club C (formerly known as Club D, hereinafter:
Respondent) signed an employment contract valid for the 2017/2018 season.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a total amount of USD 115,000 payable as follows:
“30% of contract amount after medical test
10% of contract amount after 2 months
20% after starting of second season
10% between second half season
30% after end of season”.
3.
By correspondence dated 18 September 2018, the Claimant put the Respondent in
default of payment of USD 30,000 setting a 10 days’ time limit in order to remedy
the default.
4.
On 15 February 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 30,000 corresponding to the outstanding balance of the total
amount payable by the Respondent, i.e. USD115,000.
5.
The Claimant further asks to be awarded interest of 5% p.a. as from 24 April 2018.
6.
The Respondent submitted its response to the claim after the deadline granted by
FIFA.
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 15 February 2019. Consequently, the 2018 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 Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 and par. 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
June 2018) he is competent to deal with the matter at stake, which concerns an
Player A, Country B / Club C (formerly known as Club D), Country E
Page. 2 of 6
employment-related dispute with an international dimension between a player of
Country B and a club of Country E.
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
(edition June 2018), and considering that the present claim was lodged on 15
February 2019, the June 2018 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. Moreover, the DRC judge recalled that in accordance with art. 6 par.
3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (hereinafter: TMS).
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid for the 2017/2018 season, in
accordance with which the Claimant was entitled to receive from the Respondent a
total amount of USD 115,000.
6.
The DRC judge further observed that according to the contract, 30% of said amount
was payable “after end of season”. In this respect, the DRC judge noted that
according to the information in TMS, the 2017-2018 football season in Country E
ended on 3 May 2018.
7.
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 USD 30,000 corresponding to the
outstanding balance of the total amount payable by the Respondent, i.e.
USD115,000.
8.
In this context, the DRC judge took particular note of the fact that, on 18 September
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 DRC judge concluded that the Claimant had duly proceeded in
accordance with art. 12bis par. 3 of the Regulations, which stipulates that the
Player A, Country B / Club C (formerly known as Club D), Country E
Page. 3 of 6
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 judge observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of the
Claimant within the relevant time limit set by FIFA, i.e. 27 March 2019. In fact, the
reply of the Respondent was only received on 29 March 2019. As a result, bearing in
mind the DRC’s constant jurisprudence in this regard and in application of art. 9 par.
3 of the Procedural Rules, the DRC judge decided not to take into account the reply
of the Respondent and established that, in accordance with the aforementioned
provision, it shall take a decision on the basis of those documents on file that were
provided prior to the deadline set by FIFA, in casu, on the statements and documents
presented by the Claimant.
11.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract, the Respondent was obliged to pay to the Claimant a total
amount of USD 115,000.
12.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge 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 judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of
USD 30,000 as outstanding balance of the total amount payable by the Respondent,
i.e. USD115,000.
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 amount of USD 30,000.
16.
Furthermore, 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 the amount of USD
30,000 as from the day following the due date, i.e. 5 May 2018, until the date of
effective payment.
17.
In continuation, taking into account the consideration under number II./14. above,
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
Player A, Country B / Club C (formerly known as Club D), Country E
Page. 4 of 6
prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4
of the Regulations.
18.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that the Respondent did not reply to the claim of the Claimant,
within the relevant time limit set by FIFA, the DRC judge decided to impose a 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 30,000, the DRC
judge regarded a fine amounting to CHF 5,000 as appropriate and hence decided to
impose said fine on the Respondent.
19.
In this connection, 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.
20.
The DRC judge concluded his deliberations in the present matter by establishing that
any further claim lodged by the Claimant is rejected.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is partially 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 30,000,
plus interest at the rate of 5% p.a. as from 5 May 2018, 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.
Any further claim lodged by the Claimant is rejected.
5.
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.
Player A, Country B / Club C (formerly known as Club D), Country E
Page. 5 of 6
6.
The Respondent is ordered to pay a fine in the amount of
CHF 5,000. 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. XXXXXXX/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 DRC judge:
Emilio García Silvero
Chief Legal Officer
Encl. CAS directives
Player A, Country B / Club C (formerly known as Club D), Country E
Page. 6 of 6