DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 13 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,
B, country U
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 6 August 2015, the player from country B, A (hereinafter: Claimant), and the club
from country U, B (hereinafter: Respondent) signed an employment contract valid as
from 6 August 2015 until 30 June 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a monthly salary of USD 25,000.
3.
By correspondence dated 1 March 2016, the Claimant put the Respondent in default
of payment of his salary for the months of August 2015 to December 2015 totalling
USD 125,000, setting a 10 days’ time limit in order to remedy the default.
4.
On 14 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 125,000 corresponding to 5 monthly salaries, i.e. as from August
2015 until December 2015.
5.
The Claimant further asks to be awarded interest of 5% p.a. on the 5 monthly
salaries of USD 25,000 each, as of 1 September, 1 October, 1 November, 1 December
2015 and 1 January 2016, respectively, as well as that the Respondent be ordered to
pay legal/procedural costs.
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 14 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 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 U.
Player A, country B / Club B, country U
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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 14 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 an employment contract valid as from 6 August 2015 until 30 June 2016, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, a monthly salary of USD 25,000.
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
125,000 corresponding to 5 monthly salaries, i.e. as from August 2015 until
December 2015.
7.
In this context, the DRC took particular note of the fact that, on 1 March 2016, the
Claimant put the Respondent in default of payment of the aforementioned amount
of USD 125,000, 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 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 DRC
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.
Player A, country B / Club B, country U
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11.
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 a monthly salary of USD 25,000.
12.
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.
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 USD
125,000 corresponding to monthly salaries as from August 2015 until December
2015.
14.
In addition, 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 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 125,000.
16.
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 instalments
included in the global amount of USD 125,000, as of the day following the day on
which the relevant payment(s) fell due, until the date of effective payment. In this
regard, given that the employment contract does not include any due date for
payment of the Claimant’s salary, the Chamber departed from the presumption that
salary was payable at the latest on the last day of each month during which services
were rendered.
17.
Furthermore, as regards the claimed legal expenses, the DRC referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the DRC decided to reject the Claimant’s request relating to legal expenses.
18.
In continuation, taking into account the consideration under number II./14. 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.
Player A, country B / Club B, country U
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19.
The Chamber 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 28 April 2016, 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 claim, as a
result of which a fine had been imposed on the Respondent by the DRC.
20.
Moreover, the Chamber 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.
21.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as
well as the considerations under numbers II./19. and II./20. above, the Chamber
decided to impose a more severe 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 125,000 as well as the aggravating circumstance of a repeated
offence, the Chamber regarded a fine amounting to CHF 45,000 as appropriate and
hence decided to impose said fine on the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially accepted.
2.
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 125,000, 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 25,000 as from 1 September 2015;
b. 5% p.a. on the amount of USD 25,000 as from 1 October 2015;
c. 5% p.a. on the amount of USD 25,000 as from 1 November 2015;
d. 5% p.a. on the amount of USD 25,000 as from 1 December 2015;
e. 5% p.a. on the amount of USD 25,000 as from 1 January 2016.
3.
In the event that the amount and 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 request filed by the Claimant is rejected.
Player A, country B / Club B, country U
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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 Dispute
Resolution Chamber of every payment received.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 45,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case nr.:
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 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:
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, country B / Club B, country U
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