DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 3 May 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Theo v an S eggelen (Netherlands), member
on the claim presented by the player,
Play er A, Country B
as Claimant
against the club,
Club C, Country D
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 18 January 2016, the player of Country B, Player A (hereinafter: the Claimant)
and the club of Country D, Club C (hereinafter: the Respondent) signed an
employment contract (hereinafter: the contract) valid as from 1 January 2016 until
31 December 2016.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant a
monthly salary of USD 7,000. In addition, the Respondent committed to pay to the
Claimant a sign-on fee of USD 80,000. The contract further specifies that the
remuneration established therein has to be paid in national currency.
3.
By correspondence dated 31 January 2017, the Claimant put the Respondent in
default of payment of USD 109,000 setting a time limit expiring on 10 February 2017
in order to remedy the default.
4.
On 23 January 2017, 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 109,000 corresponding to the salaries from June 2016 until
December 2016 (USD 49,000) as well as the outstanding part of the sign-on fee (USD
60,000).
5.
The Claimant further asks to be awarded interest of 5% p.a. on the amount of USD
109,000 as from 15 January 2017.
6.
In reply to the claim, the Respondent acknowledged its debt, while emphasising that
in accordance with the contract, the remuneration had to be paid in the currency of
Country D and not in USD.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 23 January
2017. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2017; hereinafter;
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the members of 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 2016), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player of Country B and a club of Country D.
Player A, Country B / Club C, Country D
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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
2016), and considering that the present claim was lodged on 23 January 2017, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and documentation on file. However, the DRC 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 from 1 January 2016 until 31 December 2016,
in accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, a monthly salary of USD 7,000 as well as a sign-on fee of USD 80,000.
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
109,000 corresponding to the salaries from June 2016 until December 2016 (USD
49,000) as well as the outstanding part of the sign-on fee (USD 60,000).
7.
In this context, the Chamber took particular note of the fact that, on 31 January
2017, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit expiring on 10 February 2017 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).
9.
Subsequently, the Chamber took into account that the Respondent acknowledged its
debt, while emphasising that in accordance with the contract, the remuneration had
to be paid in the currency of Country D and not in USD.
10.
In this regard, the DRC noted that albeit the contract provides that the remuneration
has to be paid in the currency of Country D, the latter explicitly provides for an exact
amount to be paid in USD and does not establish a specific exchange rate.
Furthermore, the Chamber referred to art. 12 par. 3 of the Procedural Rules and
emphasised that the Respondent failed to submit any evidence regarding the
exchange rate applicable.
Player A, Country B / Club C, Country D
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11.
Consequently, the DRC decided to reject the argumentation put forward by the
Respondent and to award the amounts claimed in USD.
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
109,000 corresponding to the salaries from June 2016 until December 2016 (USD
49,000) as well as the outstanding part of the sign-on fee (USD 60,000).
13.
In addition, the DRC 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 109,000.
15.
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 the amount of USD
109,000 as from 15 January 2017 until the date of effective payment.
16.
In continuation, taking into account the consideration under number 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.
17.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, bearing in mind that
the Respondent duly replied to the claim of the Claimant and in the absence of the
circumstance of repeated offence, the Chamber decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
18.
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.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, 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 109,000, plus
interest at the rate of 5% p.a. as from 15 January 2017 until the date of effective
payment.
Player A, Country B / Club C, Country D
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3.
In the event that the amount 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.
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.
5.
A warning is imposed on the Respondent.
*****
Note relating to the m otiv ated decis ion (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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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