DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC)
passed by way of circulars on 11 April 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (USA), 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 8 January 2017, the player of Country B, Player A (hereinafter: Claimant), and the
club of Country D, Club C (hereinafter: Respondent), signed an employment contract
valid as from its date of signature until 24 December 2017.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant the total amount of EUR 38,000 for the entire duration of the contract
as well as, inter alia, a bonus of EUR 5,000 subject to the Claimant playing 70% of
the matches.
3.
By correspondence dated 30 November 2018, the Claimant put the Respondent in
default of payment of EUR 7,660 setting a 10 days’ time limit in order to remedy the
default.
4.
On 21 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 EUR 7,660 corresponding to part of his December 2017 salary (i.e. EUR
2,660) and the bonus of EUR 5,000.
5.
The Claimant further asked to be awarded interest of 5% p.a. as of 1 January 2018
until the date of effective payment.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, the DRC took note that the present matter was submitted to FIFA on 21
February 2019. 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 employment-related dispute with an
international dimension between a player of 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, the members of the DRC 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 claim was lodged on 21
Player A, Country B / Club C, Country D
Page 2 of 6
February 2019, 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 DRC acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 8 January 2017 until 24
December 2017, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, the total amount of EUR 38,000 as well as a bonus of EUR
5,000 subject to the Claimant playing 70% of the Respondent’s matches.
6.
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 EUR
7,660 corresponding to part of his December 2017 salary (i.e. EUR 2,660) and the
bonus of EUR 5,000.
7.
In this context, the DRC took particular note of the fact that, on 30 November 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.
8.
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).
9.
Subsequently, the DRC took into account 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 Chamber considered that the Respondent renounced its right
to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the members
of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural
Rules they 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.
11.
Having said this, the DRC acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the
Claimant a total amount of EUR 38,000 for the entire duration of the contract as
well as a bonus of EUR 5,000 subject to the Claimant playing 70% of the matches. In
this regard, the DRC noted that the Claimant had corroborated his claim related to
the bonus payment with sufficient documentary evidence.
Player A, Country B / Club C, Country D
Page 3 of 6
12.
Taking into account the documentation presented by the Claimant in support of his
petition, the Chamber 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 established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
7,660 corresponding to part of his December 2017 salary and the bonus of EUR
5,000.
14.
In addition, the members of the DRC established that the Respondent had delayed a
due payment for more than 30 days without a prima facie contractual basis.
15.
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 total amount of EUR 7,660.
16.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of EUR 7,660 as from 1
January 2018 until the date of effective payment.
17.
In continuation, taking into account the consideration under number II./14. 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 30 days without a
prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4
of the Regulations. The DRC established that in virtue of art. 12bis par. 4 of the
Regulations, it has competence to impose sanctions on the Respondent.
18.
In this context, the members of the Chamber highlighted that, on 23 November
2017, 12 June 2018 and 13 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 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
judge.
19.
Having said that, the DRC 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 fourth time.
20.
Along these lines, the Chamber referred to art. 12bis par. 6 of the Regulations, which
established that a repeated offence will be considered as an aggravating
circumstance and lead to a more severe penalty.
21.
Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis
paras 7 and 8 of the Regulations, the members of 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
Player A, Country B / Club C, Country D
Page 4 of 6
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.
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, within 30 days as from the date
of notification of this decision, overdue payables in the amount of EUR 7,660, plus
interest at the rate of 5% p.a. as from 1 January 2018 until the date of effective
payment.
3.
In the event that the amount 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 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:
Player A, Country B / Club C, Country D
Page 5 of 6
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
Page 6 of 6