DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 23 May 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
A, country B
represented by Mr xxxx
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 5 July 2013, the player from country B, A (hereinafter: Claimant), and the club
from country U, club B (hereinafter: Respondent), signed an employment contract
valid as from 1 January 2014 until 31 December 2015.
2.
Moreover, the Claimant and the Respondent signed a document titled “Addition No.
1 to a contract from 1st July 2013. The Footballer A” (hereinafter: Annex 1) valid as
from “its signing” until 31 December 2015.
3.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, a monthly salary in the amount of xxxxx (xx) 10,000, payable
not later than the 5th day of the following month.
4.
Furthermore, according to the employment contract, “All amounts in present
contract are indicated and adjusted for taxation and other compulsory payments.
The Club retains on his own the amount of taxes and other compulsory payments
from all the taxable payments owing the Football player and remits them to
appropriate budget”.
5.
In accordance with Annex 1, the Respondent undertook to pay to the Claimant, inter
alia, for the period between 1 January 2014 and 31 December 2014, an additional
amount of USD 19,000 per month, plus an “additional stimulation on signing the
contract” of a “non-repeat additional amount of USD 20,000” (hereinafter: the signon fee), payable at the latest on 1 July 2014.
6.
The Annex 1 established that “extent of [the additional amount] depends on the
quantity of the Footballer’s presence in matches…An additional amount is paid to
the Footballer in corpore every month if the Footballer is listed in the official match
protocol of official Club’s games no less than 70% for the main team…”.
7.
In addition, the Annex 1 stipulated that “The Club can make a decision about
additional stimulation of the Footballer depending on his individual results of
activities and place team keeps in tournament table of Championship”.
8.
By correspondence dated 22 January 2016, the Claimant put the Respondent in
default of payment of USD 70,000 and xx 20,000, setting a 10 days’ time limit in
order to remedy the default. The requested amounts correspond as follows:
Monthly remuneration of May 2014 in the amount of xx 10,000;
Player A, country B / Club B, country U
Page 2 of 9
Additional amount of May 2014 in the amount of USD 19,000;
Monthly remuneration of June 2014 in the amount of xx 10,000;
Additional amount of June 2014 in the amount of USD 19,000;
The sign-on fee of USD 20,000 payable on 1 July 2014;
Bonus of USD 12,000.
9.
On 21 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
amounts of USD 70,000 and xx 20,000, corresponding to the following amounts:
Monthly remuneration of May 2014 in the amount of xx 10,000;
Additional amount of May 2014 in the amount of USD 19,000;
Monthly remuneration of June 2014 in the amount of xx 10,000;
Additional amount of June 2014 in the amount of USD 19,000;
The sign-on fee of USD 20,000 payable on 1 July 2014;
Bonus of USD 12,000.
10.
The Claimant further asks to be awarded interest as of the due dates and that the
Respondent be ordered to pay legal and procedural costs.
11.
The Respondent, on its part, only replied to the claim via email. Subsequently, in
spite of having been invited by FIFA to provide its reply by the official means of
communication, i.e. via fax or ordinary mail, the Respondent failed to do so.
12.
In its email reply, the Respondent rejected only part of the claim, as it accepted
owing outstanding remuneration to the Claimant in the total amount of USD
58,000, corresponding to the sign-on fee of USD 20,000 and the two additional
amounts for the months of May 2014 and June 2014 in the amount of USD 19,000
each.
13.
Furthermore, the Respondent rejected the Claimant’s claim for the monthly salaries
of May 2014 and June 2014, in the amount of xx 10,000 each, and the claimed bonus
in the amount of USD 12,000. In this respect, the Respondent sustained having paid
Player A, country B / Club B, country U
Page 3 of 9
the salaries of May and June 2014 and held that, in respect to the bonus claimed,
“The decision of payment to the football player of an award following the results
after the last game of a season on May 18, 2014 wasn’t accepted by the club”.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: 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 21 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 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
2015) he 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.
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 2015), and considering that the present claim was lodged on 21 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 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.
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 1 January 2014 until 31
December 2015, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, a monthly salary in the amount of xx 10,000, payable not
later than the 5th day of the following month.
Player A, country B / Club B, country U
Page 4 of 9
6.
Moreover, the DRC judge acknowledged that the Claimant and the Respondent
signed Annex 1, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, for the period between 1 January 2014 and 31 December
2014, an additional amount of USD 19,000 per month, plus a sign-on fee of USD
20,000, payable at the latest on 1 July 2014.
7.
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
70,000 and xx 20,000, corresponding to the monthly remuneration of May 2014 in
the amount of UAH 10,000, the additional amount of May 2014 in the amount of
USD 19,000, the monthly remuneration of June 2014 in the amount of xx 10,000, the
additional amount of June 2014 in the amount of USD 19,000, the sign-on fee of
USD 20,000 payable on 1 July 2014, and an alleged bonus payment of USD 12,000.
8.
In this context, the DRC judge took particular note of the fact that, on 22 January
2016, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit expiring on 1 February 2016 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
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 took into account that the Respondent, for its part,
submitted its response to the claim of the Claimant by e-mail only.
11.
In this respect, the DRC judge recalled that in accordance with art. 16 par. 3 of the
Procedural Rules, petitions submitted by e-mail shall have no legal effect, in contrast
to petitions submitted by fax.
12.
Furthermore, the DRC judge took note that in spite of having been invited by the
FIFA administration to provide its reply by the official means of communication, i.e.
via fax or ordinary mail, the Respondent failed to do so. In this way, the DRC judge
considered that, in accordance with art 16 par. 3, as the Respondent submitted its
position to the claim by e-mail only, the Respondent cannot be taken into account.
13.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a
Player A, country B / Club B, country U
Page 5 of 9
decision upon the basis of the documents on file, i.e. upon the statements and
documents presented by the Claimant.
14.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant a monthly salary in the amount of xx 10,000, payable not later than
the 5th day of the following month, and that in accordance with Annex 1, the
Respondent was also obliged to pay to the Claimant, for the period between 1
January 2014 and 31 December 2014, an additional amount of USD 19,000 per
month, plus a sign-on fee of USD 20,000, payable at the latest on 1 July 2014.
15.
Furthermore, taking into account the documentation presented by the Claimant in
support of his petition, the DRC judge 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
contractual basis relating to the Claimant’s claim pertaining to the bonus payment
of USD 12,000 as said amount is not established and duly specified neither in the
employment contract nor in Annex 1. Consequently, the DRC judge decided to reject
this part of the Claimant’s claim relating to the bonus payment of USD 12,000.
16.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the DRC judge established that the Respondent failed to
remit the Claimant’s remuneration in the total amounts of USD 58,000 and xx 20,000
corresponding to the monthly remuneration of May 2014 in the amount of xx
10,000, the additional amount of May 2014 in the amount of USD 19,000, the
monthly remuneration of June 2014 in the amount of xx 10,000, the additional
amount of June 2014 in the amount of USD 19,000 and the sign-on fee of USD
20,000 payable on 1 July 2014.
17.
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.
18.
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 amounts of USD 58,000 and xx 20,000.
19.
In addition, 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 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 U
Page 6 of 9
20.
Furthermore, as regards the claimed legal expenses and procedural costs, the DRC
judge 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 judge decided to reject the Claimant’s request
relating to legal expenses and procedural costs.
21.
Moreover, the DRC judge decided that any further request filed by the Claimant is
rejected.
22.
In continuation, taking into account the consideration under number II./17. 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
prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4
of the Regulations.
23.
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 only replied to the claim by e-mail and email petitions shall have no legal effect in in accordance with art. 16 par. 3 of the
Procedural Rules, 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 58,000 and xx 20,000, the DRC judge regarded
a fine amounting to CHF 7,500 as appropriate and hence decided to impose said fine
on the Respondent.
24.
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.
Player A, country B / Club B, country U
Page 7 of 9
III.
Decision of the DRC judge
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 amounts of USD 58,000 and
xx 20,000, 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 xx 10,000 as from 6 June 2014;
b. 5% p.a. on the amount of USD 19,000 as from as from 6 June 2014;
c. 5% p.a. on the amount of USD 20,000 as from as from 2 July 2014;
d. 5% p.a. on the amount of xx 10,000 as from 6 July 2014;
e. 5% p.a. on the amount of USD 19,000 as from as from 6 July 2014.
3.
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.
4.
Any further request filed 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 B, country U
Page 8 of 9
6.
The Respondent is ordered to pay a fine in the amount of
CHF 7,500. 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 DRC judge:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club B, country U
Page 9 of 9