DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 20 May 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
A, country B
represented by Mr xxxxx
as Claimant
against the club,
Club B, country A
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 3 July 2014, the player from country B, A (hereinafter: the Claimant), and the
club from country A, club B (hereinafter: the Respondent) signed an employment
contract valid as from the date of the signature until 30 June 2015.
2.
On 24 December 2014, the Claimant and the Respondent signed a termination
agreement.
3.
In accordance with the termination agreement, the Respondent undertook to pay
to the Claimant inter alia the amount of USD 81,150, in three instalments of USD
27,050, payable no later than 31 March 2015, 30 April 2015 and 20 May 2015,
respectively.
4.
On 30 July 2015, the Claimant put the Respondent in default of payment of USD
54,100 setting a 10 days’ time limit in order to remedy the default.
5.
On 2 March 2016, 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 54,100, corresponding to the two instalments of USD 27,050,
due on 30 April 2015 and 20 May 2015, respectively.
6.
In spite of having been invited to do so, the Respondent has not replied to 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 2 March
2016. 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 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
Player A, country B/ Club B, country A
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2015), it is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player
from country B and a club from country A.
3.
Furthermore, the DRC 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 2015), and considering that the present claim was lodged 2 March 2016,
the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation on file. However, the Chamber 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 DRC acknowledged that the Claimant and the Respondent
signed a settlement agreement, in accordance with which, inter alia, the Claimant
was entitled to receive from the Respondent the amount of USD 81,150, in three
instalments of USD 27,050, payable no later than 31 March 2015, 30 April 2015
and 20 May 2015, respectively.
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
USD 54,100, corresponding to the two instalments of USD 27,050, due on 30 April
2015 and 20 May 2015, established in the settlement agreement signed between
the parties.
7.
In this context, the DRC took particular note of the fact that, on 30 July 2015, the
Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit expiring on 9 August 2015 in order to remedy the
default.
8.
Consequently, the DRC 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).
Player A, country B/ Club B, country A
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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 DRC 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
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.
11.
Taking into account the documentation presented by the Claimant in support of
his petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
12.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of
USD 54,100, corresponding to two instalments, stipulated in the termination
agreement signed between the parties, in the amount of USD 27,050 each, which
fell due on 30 April 2015 and 20 May 2015, respectively.
13.
In addition, the Chamber established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
14.
Consequently, the DRC 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 54,100.
15.
In continuation, taking into account the consideration under point II./13. above,
the DRC 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.
16.
The DRC established that in virtue of the aforementioned article, it has
competence to impose sanctions on the Respondent. In this context, the Chamber
highlighted that, on 16 February 2016, 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 fine was imposed on the Respondent by
the DRC judge. Consequently, the Chamber established that, for the second time,
the Respondent has delayed a due payment for more than 30 days without a
prima facie contractual basis.
Player A, country B/ Club B, country A
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17.
Moreover, the members of the Chamber wished to underline and took into
account that the Respondent has been found by the DRC responsible for not
complying with its financial obligations towards players on various occasions in
the recent past.
18.
Along these lines, 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 more severe penalty.
19.
Therefore, bearing in mind the considerations under points II./17. and II./18.
above, the DRC decided that in the event that the Respondent does not pay the
amount due to the Claimant within the 30 days following the notification of the
present decision, a ban from registering any new players, either nationally or
internationally, for the next entire registration period following the notification
of the present decision shall become effective on the Respondent in accordance
with art. 12bis par. 4 lit. d) of the Regulations.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, club B, has to pay to the Claimant overdue payables in the
amount of USD 54,100 within 30 days as from the date of notification of this
decision.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and 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.
Player A, country B/ Club B, country A
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5.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the Respondent shall be banned from registering any
new players, either nationally or internationally, for the next entire registration
period following the notification of the present decision.
*****
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 A
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