DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 4 May 2016,
by Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
A, country I
represented by Mr xxx
as Claimant
against the club,
B, country P
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 26 August 2014, the player from country I, A (hereinafter: the Claimant) and
the club from country P, club B (hereinafter: the Respondent) signed an
employment contract valid for the season 2014/2015.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant the total amount of EUR 40,000 payable in 10 monthly salaries of
EUR 4,000.
3.
On the same date, the parties concluded an annexe to the contract (hereinafter:
the annexe) which stipulated that the Claimant was entitled, inter alia, to the
following bonuses:
a. EUR 10,000 in case the player participates in 5 matches of the xx
Championship for at least 45 minutes;
b. EUR 2,500 in case the player participates in 20 matches of the xx
Championship for at least 45 minutes.
4.
By correspondence dated 5 February 2016, the Claimant put the Respondent in
default of payment of EUR 25,500 setting a time limit of 10 days in order to
remedy the default.
5.
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 amount of EUR 25,000 broken down as follows:
a. EUR 1,000 for part of his salary of March 2015;
b. EUR 4,000 for his salary of April 2015;
c. EUR 4,000 for his salary of May 2015;
d. EUR 4,000 for his salary of June 2015;
e. EUR 10,000 in accordance with point 3.a above;
f. EUR 25,500 in accordance with point 3.b above.
6.
The Claimant further asked to be awarded interest of 5% p.a. as of the respective
due dates.
7.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Considerations of the DRC judge
Player A, country I / Club B, country P
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1.
First of all, the 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: the 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 I and a club from country P.
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: the 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 for the season 2014/2015, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, the total amount of EUR 40,000 payable in 10 monthly salaries of EUR
4,000.
6.
Furthermore, the DRC judge took note that according to the annexe concluded
between the parties, the Claimant was entitled to receive as bonuses from the
Respondent the following: i) EUR 10,000 in case the player participates in 5
matches of the xx Championship for at least 45 minutes and ii) EUR 2,500 in case
the player participates in 20 matches of the xx Championship for at least 45
minutes.
Player A, country I / Club B, country P
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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
EUR 25,500 corresponding to part of his salary of March 2015, his salaries of April,
May and June 2015 as well as outstanding bonuses.
8.
In this context, the DRC judge took particular note of the fact that, on 5 February
2016, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit of 10 days 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,
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 judge considered that the Respondent
renounced its right to defence and thus, in principle, accepted the allegations of
the Claimant.
11.
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 decision upon the basis of the documents already on file, in other
words, upon the statements and documents presented by the Claimant.
12.
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 10 monthly salaries of EUR 4,000 as well as bonuses in the
amount of EUR 10,000 in case the player participates in 5 matches of the xx
Championship for at least 45 minutes and of EUR 2,500 in case the player
participates in 20 matches of the xx Championship for at least 45 minutes.
13.
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 supporting documentation relating to the Claimant’s claim
pertaining to outstanding bonuses as per points I./3.a and I/3.b. ut supra.
Consequently, the DRC judge decided to reject this part of the Claimant’s claim.
Player A, country I / Club B, country P
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14.
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 amount of EUR 13,000
corresponding to his salaries of (part of) March, April, May and June 2015.
15.
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.
16.
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 EUR 13,000.
17.
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 the aforementioned
outstanding amount as from the respective due dates until the date of effective
payment.
18.
Moreover, the DRC judge decided that any further request filed by the Claimant is
rejected.
19.
In continuation, taking into account the consideration under number II./15. 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.
20.
At this stage, the DRC judge wished to highlight that, on 2 November 2015, the
Respondent had already been found by the DRC judge (ref. no. xxxx) to have
delayed a due payment for more than 30 days without a prima facie contractual
basis, as a result of which a fine had been imposed on the Respondent.
21.
With the above-mentioned considerations in mind, the DRC judge established that
in virtue of art. 12bis par. 4 of the Regulations, he has competence to impose
sanctions on the Respondent. Moreover, the DRC judge 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 a more severe penalty.
22.
In view of the foregoing and bearing in mind that the Respondent did not reply
to the claim of the Claimant as well as the consideration under number II./20.
above, the DRC judge decided to impose a more severe fine on the Respondent in
accordance with art. 12bis par. 4 lit. c) of the Regulations.
Player A, country I / Club B, country P
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23.
Along these lines, taking into consideration the amount due of EUR 13,000 as well
as the aggravating circumstance of a repeated offence, the DRC judge regarded a
fine amounting to CHF 6,000 as appropriate and hence decided to impose said
fine on the Respondent.
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 amount of EUR
13,000, 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 EUR 1,000 as from 1 April 2015;
b. 5% p.a. on the amount of EUR 4,000 as from 1 May 2015;
c. 5% p.a. on the amount of EUR 4,000 as from 1 June 2015;
d. 5% p.a. on the amount of EUR 4,000 as from 1 July 2015.
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.
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.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 6,000. 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
Player A, country I / Club B, country P
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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 I / Club B, country P
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