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
Johan van Gaalen (South Africa), member
Eirik Monsen (Norway), member
Wouter Lambrecht (Belgium), member
Zola Percival Majavu (South Africa), member
on the claim presented by the player,
A, country N
represented by Mr xxxxxx
as Claimant
against the club,
B, country B
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On an unspecified date, the player from country N, A (hereinafter: Claimant), and
the club from country B, B (hereinafter: Respondent), signed an employment
contract valid as from 1 August 2011 until 31 May 2014.
2.
According to the employment contract, the Claimant was entitled to receive inter
alia EUR 1,400,000 for the season 2013/2014 payable as follows:
a. EUR 420,000 as a signing-on fee;
b. EUR 98,000 as monthly salary from August 2013 until 31 May 2014.
3.
On 2 February 2016, the Claimant put the Respondent in default of payment of
the amount of EUR 294,000 setting a 14 days’ time limit to remedy default.
4.
On 29 March 2016, the Claimant lodged a claim against the Respodent before
FIFA asking to be awarded payment of outstanding receivables in the total
amount of EUR 294,000, corresponding to the monthly salaries of March, April
and May 2014.
5.
According to the Claimant, although he fulfilled his contractual obligations, the
Respondent failed to pay the monthly salaries for the period between March and
May 2014.
6.
Furthermore, although the Respondent promised to pay the outstanding salaries
until September 2014, it allegedly failed to do so. In this respect, the Claimant
submitted a copy of a document issued by the Respondent named “pledge”, by
means of which the latter undertook to pay all the amounts due to the Claimant.
7.
The Claimant further asks to be awarded interest as from the respective due dates
as well as that the Respondent pay legal fees and procedural costs.
8.
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, the DRC took note that the present matter was submitted to FIFA on 29
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).
Player A, country N / Club B, country B
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2.
Subsequently, the DRC referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 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 employmentrelated dispute with an international dimension between a player from country N
and a club from country B.
3.
Furthermore, the Chamber 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 on 29 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 and the applicable regulations having been
established, the Chamber 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 members of the DRC
emphasised that in the following considerations they will refer only to the facts,
arguments and documentary evidence, which they 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 from 1 August 2011 until 31 May 2014. In
particular, the Chamber took note that, in accordance with the employment
contract, the Claimant was entitled to receive from the Respondent, inter alia, the
total amount of EUR 1,400,000 for the season 2013/2014, payable EUR 420,000 as
a signing-on fee and the remaining amount of EUR 980,000 divided in 10 monthly
salaries of EUR 98,000 each, for the period between August 2013 and 31 May
2014.
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
EUR 294,000 corresponding to the monthly salaries of March, April and May 2014.
7.
In this context, the DRC took particular note of the fact that, on 2 February 2016,
the Claimant put the Respondent in default of payment of the aforementioned
amount, setting a time limit of 14 days 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 N / Club B, country B
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9.
Subsequently, the Chamber 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, in principle, 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.
11.
Having said this, the DRC 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 98,000 each for the season 2013/2014.
12.
Furthermore, taking into account the documentation presented by the Claimant
in support of his petition, the Chamber concluded that the Claimant had fully
substantiated his claim pertaining to overdue payables with pertinent
documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules.
13.
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 EUR 294,000
corresponding to his salaries of March, April and May 2014.
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 Chamber 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 294,000.
16.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. 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.
17.
Moreover, the Chamber rejected any claim for legal expenses and procedural costs
in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
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
Player A, country N / Club B, country B
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facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of
the Regulations.
19.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and bearing in
mind that the Respondent did not reply to the claim of the Claimant, the
Chamber 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 EUR 294,000, the DRC regarded a fine amounting to CHF 20,000 as
appropriate and hence decided to impose said fine on the Respondent.
20.
In this respect, 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 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
294,000, 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 98,000 as from 1 April 2014;
b. 5% p.a. on the amount of EUR 98,000 as from 1 May 2014;
c. 5% p.a. on the amount of EUR 98,000 as from 1 June 2014.
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
Dispute Resolution Chamber of every payment received.
Player A, country N / Club B, country B
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6.
The Respondent is ordered to pay a fine in the amount of
CHF 20,000. 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country N / Club B, country B
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