DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 26 May 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Wouter Lambrecht (Belgium), member
Zola Percival Majavu (South Africa), member
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
on the claim presented by the player,
A, country B
represented by Mr xxxx
as Claimant
against the club,
B, country I
represented by Mr xxxx
as Respondent
regarding an employment-related dispute arisen between the parties
I.
Facts of the case
Facts relating to the preliminary issue of competence
1.
The player from the country B, A (hereinafter: Claimant), and the club from the
country I, club B (hereinafter: Respondent), entered into an employment contract
(hereinafter: the contract) valid from “the (2014-2015) season until the end of
(2014-2015) full sport season…”. In respect to the signing date of the contract, the
date 23 April is stated in the copy of the contract provided, however, the year
cannot be clearly seen in said copy. Furthermore, according to the Claimant, the
2014/2015 season ended on 15 May 2015.
2.
Art. 15 of the contract established that:
“Article (15) Arbitration:
In case of any dispute for any reason between two parties of contract, firstly
Disciplinary Committee of [Respondent] will resolve it, if dispute wasn’t resolved,
the Disciplinary Committee of the relevant federation as the Impartial Judge would
resolve it and the sentence of the Federation’s Disciplinary Committee will be
definite and both parties can not object about it or if dispute was not yet resolved,
it would be submitted to FIFA Arbitral Tribunal (FIFA Player’s Status and FIFA
Dispute Resolution Chamber”.
3.
The Respondent contested the competence of FIFA to deal with the present matter.
In this respect, the Respondent stated that “we firstly disputed the competence of
FIFA to adjudicate on the present matter since according to the latter, there is an
independent arbitration tribunal guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs (…) at national level”.
4.
The Respondent referred to art. 15 of the contract and argued that the “litigation
of the present agreement shall be settled in the following order: a) Disciplinary
Committee of the club; b) Disciplinary Committee of the relevant Federation; c) at
the last stage and in case that the dispute is not resolved yet the FIFA Judicial bodies
will be competent to adjudicate.”.
5.
Therefore, the Respondent requested to dismiss the claim and cease the current
proceeding since “the parties undertake not to refer to FIFA for the settlement of
the litigations until after finishing all the methods of the court of jurisdiction of XY
Football Federation Professional League”.
6.
On his part, the Claimant referred to art. 15 of the contract and highlighted that
the parties expressly agreed that “in case of any dispute for any reason between
Player A, country B / Club B, country I
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two parties of contract (…) was not yet resolved, it would be submitted to FIFA
Arbitral Tribunal (FIFA Player’s Status and FIFA Dispute Resolution Chamber)”.
Facts relating to the substance of the matter
1.
The Claimant and the Respondent signed an employment contract valid from “the
(2014-2015) season until the end of (2014-2015) full sport season…”.
2.
According to the contract, the Claimant was entitled, inter alia, to a total
remuneration of USD 226,315, for the duration of the contract and payable as
follows:
“20% of the remainder equal to USD 45,263 is paid to the [Claimant] after
passing successfully the medical test;
20% of the remainder equal to USD 45,263 is paid to the [Claimant] after the
half season”;
20% of the remainder equal to USD 45,263 is paid to the [Claimant] after the
end of the full season”;
40% of the remainder equal to USD 90,526 is paid to the [Claimant] as
monthly pay in 13 instalments as scheduled below.”. The contract contained
a detailed schedule for the monthly salary payments from June 2014 to June
2015, in which it is established, inter alia, that the amount to be paid for the
month of June 2015 is USD 6,970 and the due date is 21 June 2015.
3.
Art. 6 of the contract stipulated that “All rewards and fines are applied according to
the Club Inner Financial Regulations…”.
4.
In accordance with art. 13 of the contract, the Claimant was entitled to 2
“economic” round trip tickets in the route B-I. Moreover, said article also
established that the Respondent will provide two “economic” round trip tickets in
the same route for the Claimant’s family.
5.
On 20 January 2016, the Claimant put the Respondent in default of payment of USD
57,114, setting a 10 days’ time limit in order to remedy the default. The Claimant
broke down the alleged debt as follows:
Outstanding salary for June 2015, in the amount of USD 6,970;
Player A, country B / Club B, country I
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6.
Outstanding amount corresponding to 20% of the contract payable at the
end of the season, in the amount of USD 45,263;
Outstanding bonus for winning the I Cup in the amount of USD 3,125;
Two airline tickets in the amount of USD 1,756.27.
On 25 February 2016, the Claimant lodged a claim against the Respondent before
FIFA, asking that the Respondent be ordered to pay to him overdue payables in the
amount of USD 57,114.27, plus 5% interest as from the respective due dates, which
according to the Claimant is USD 2,233.98. The Claimant broke down his request as
follows:
USD 6,970 corresponding to the salary of June 2015;
USD 45,263 corresponding to the 20% of the value of the contract payable
at the end of the season. In this respect, the Claimant sustained that the
season ended on 15 May 2015;
USD 1,756.27 corresponding to the reimbursement of two flight tickets. In
this regard, the Claimant provided two flight ticket receipts, one in the
route X – Y dated 9 June 2014, and the other in the route Y- T – Y dated 3
December 2014. According to the Claimant, the flights were due as from 10
July 2014 and 4 December 2014, respectively;
USD 3,125 corresponding to a bonus payment in respect to the Respondent
winning the I Cup, as established in art 6 of the contract and the
Respondent’s financial regulations.
7.
According to the Claimant, the Respondent has failed to pay the amounts claimed
even after being requested several times and after being put in default.
8.
Despite having been invited to do so, the Respondent did not present its position to
the substance of the claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed
whether it was competent to deal with the matter at hand. In this respect, it took
note that the present matter was submitted to FIFA on 25 February 2016.
Player A, country B / Club B, country I
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Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2015; 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 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2015) the Dispute Resolution Chamber shall adjudicate on employment-related
disputes between a club and a player that have an international dimension.
3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a player from country B
and club from country I regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding bodies on the basis of art. 15 of the contract alleging
that there is an independent arbitration tribunal guaranteeing fair proceedings and
respecting the principle of equal representation of players and clubs at national
level. Furthermore, the members of the Chamber noted that, according to the
Respondent, disputes arising from the contract shall be settled in the following
order, first before the Disciplinary Committee of the Respondent, subsequently,
before the Disciplinary Committee of the XY Football Federation and finally, before
the FIFA “Judicial bodies”.
5.
On the other hand, the Chamber noted that the Claimant insisted on the
competence of the FIFA DRC to adjudicate on the claim lodged by him against the
Respondent. Moreover, the Claimant highlighted that, according to him, the parties
expressly agreed in art. 15 of the contract that in case of an unsolved dispute, it
would be submitted to “FIFA Arbitral Tribunal (FIFA Player’s Status and FIFA Dispute
Resolution Chamber)”.
6.
Taking into account all the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the 2015 edition of the Regulations on the Status and Transfer of
Players it is competent to deal with a matter such as the one at hand, unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs, has been established at
national level within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA
Circular no. 1010 dated 20 December 2005. Equally, the members of the Chamber
referred to the principles contained in the FIFA National Dispute Resolution
Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.
Player A, country B / Club B, country I
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7.
In relation to the above, the Chamber also deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ than
the DRC is competent to settle an employment-related dispute between a club and a
player of an international dimension, is that the jurisdiction of the relevant national
arbitration tribunal or national court derives from a clear reference in the
employment contract.
8.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear jurisdiction clause.
9.
In this respect, the Chamber recalled that art. 15 of the employment contract
stipulated that: “In case of any dispute for any reason between two parties of
contract, firstly Disciplinary Committee of [the Respondent] will resolve it, if dispute
wasn’t resolved, the Disciplinary Committee of the relevant federation as the
Impartial Judge would resolve it and the sentence of the Federation’s Disciplinary
Committee will be definite and both parties can not object about it or if dispute was
not yet resolved, it would be submitted to FIFA Arbitral Tribunal (FIFA Player’s Status
and FIFA Dispute Resolution Chamber).”.
10.
Having examined the relevant provision, the Chamber came to the unanimous
conclusion that art. 15 does not constitute a clear jurisdiction clause in favour of one
specific court or arbitration tribunal in country I, since it established, in first place,
that in case of a dispute, the parties will have to refer said dispute to the
“Disciplinary Committee of [the Respondent]”. Subsequently, the same clause
established that in case that the dispute is not yet solved, the Disciplinary Committee
of the XY Football Federation would be competent to hear the dispute. Finally, the
clause analysed in the matter at hand, even contained a reference to both FIFA’s
Players’ Status Committee and FIFA’s Dispute Resolution Chamber, as final
competent bodies.
11.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has to be
rejected, and that the Dispute Resolution Chamber is competent, on the basis of art.
22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the
present matter as to the substance.
12.
Subsequently, the DRC 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
Player A, country B / Club B, country I
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2015), and considering that the present claim was lodged on 25 February 2016, the
2015 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
13.
The competence of the DRC and the applicable regulations having been established,
the Chamber entered into the substance of the matter. In this respect, the members
of 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.
14.
Having said this, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract valid from “the (2014-2015) season until the end of
(2014-2015) full sport season…”, which according to the Claimant, ended on 15 May
2015. The DRC noted that this statement remained undisputed by the Respondent,
and therefore, it concluded that the season ended on 15 May 2105, as sustained by
the Claimant.
15.
The DRC noted that in accordance with the contract, the Claimant was entitled to
receive from the Respondent, inter alia, the following amounts:
USD 45,263 after passing the medical test;
USD 45,263 payable after half of the season;
USD 45,263 payable after the end of season;
USD 90,526 as monthly salaries, divided in 13 instalments. In accordance with
the schedule provided in the contract for these instalments, the amount to be
paid for the month of June 2015 is USD 6,970 and the due date for said
payment is 21 June 2015.
16.
The members of the Chamber further acknowledged that the Claimant was entitled
to two “economic” round trip tickets in the route B-I, plus two “economic” round
trip tickets in the same route for his family.
17.
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
57,114.27, corresponding to the following amounts:
USD 6,970 corresponding to the salary of June 2015;
Player A, country B / Club B, country I
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USD 45,263 corresponding to the 20% of the value of the contract payable
at the end of the season.
USD 1,756.27 corresponding to the reimbursement of two flight tickets.
USD 3,125 corresponding to an alleged bonus payment for winning the I
Cup.
18.
In this context, the DRC took particular note of the fact that, on 20 January 2016, the
Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit expiring on 30 January 2016 in order to remedy the
default.
19.
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).
20.
Subsequently, the DRC took into account that the Respondent, for its part, failed to
present its response to the substance of 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.
21.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.
22.
Having said this, the Chamber acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant, inter alia, USD 45,263 after passing the medical test, USD 45,263
payable after half of the season, USD 45,263 payable after the end of season and
USD 90,526 as monthly salaries, divided in 13 instalments payable in accordance with
the schedule in the contract.
23.
Moreover, the members of the Chamber observed that the Claimant was entitled to
4 “economic” round trip tickets in the route B-I, for him and his family. The DRC
took note that the Claimant enclosed two flight ticket receipts, one in the route X –
Y dated 9 June 2014, and the other in the route Y- T – X dated 3 December 2014, in
order to support his request for reimbursement of flight tickets.
Player A, country B / Club B, country I
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24.
The Chamber recalled that according to art. 6 of the contract, all rewards and fines
are applied in accordance to the Respondent’s Financial Regulations. In this respect,
the Chamber noted that the Claimant did not provide a copy of said regulations in
his claim.
25.
Furthermore, taking into account the documentation presented by the Claimant in
support of his petition, the DRC concluded that the Claimant had not fully
substantiated his claim pertaining to overdue payables with pertinent documentary
evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no
appropriate supporting documentation relating to the Claimant’s claim pertaining
to the bonus payment in the amount of USD 3,125 and the reimbursement of flight
tickets in the amount of USD 1,756.27.
26.
In this regard, on one hand, bonus payments, in accordance with the contract, are
only established in the Respondent’s Financial Regulations, copy of which was not
provided by the Claimant, and on the other hand, in accordance with the contract as
well, the Claimant was entitled to four “economic” round trip tickets in the route B-I
only, for him and his family, however, the Claimant submitted two flight ticket
receipts in a different route than the one established in the contract. Consequently,
the DRC decided to reject this part of the Claimant’s claim relating to outstanding
bonus payment and reimbursement of flight tickets in the amounts of USD 3,125
and USD 1,756.27, respectively.
27.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the DRC established that the Respondent failed to remit
the Claimant’s remuneration in the total amount of USD 52,233 corresponding to
USD 45,263 payable after the end of season and the salary for June 2015, in the
amount of USD 6,970 payable on 21 June 2015.
28.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
29.
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 52,233.
30.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payment(s) as of the day following the day on which the relevant payment(s) fell
due, until the date of effective payment.
Player A, country B / Club B, country I
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31.
Moreover, the DRC decided that any further request filed by the Claimant is
rejected.
32.
In continuation, taking into account the consideration under number II./26. above,
the members of 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.
33.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent duly replied to the claim of the Claimant and in the absence of the
circumstance of repeated offence, the Chamber decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
34.
In this connection, the DRC 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.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, club B, has to pay to the Claimant, within 30 days as from the date
of notification of this decision, overdue payables in the amount of USD 52,233, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of USD 45,263 as from 16 May 2015;
b. 5% p.a. on the amount of USD 6,970 as from 22 June 2015.
4.
In the event that the amount due to the Claimant, plus interest, 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.
5.
Any further request filed by the Claimant is rejected.
Player A, country B / Club B, country I
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6.
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 Dispute
Resolution Chamber of every payment received.
7.
A warning is imposed on the Respondent.
*****
Note relating to the motivated decision (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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club B, country I
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