DRC Overdue Payables
Texto da decisão
Decis ion of the Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 18 May 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
John Bram hall (England), member
Takuy a Yam azaki (Japan), member
Moham ed Al S aikhan (S audi Arabia), member
Wouter Lam brecht (Belgium ), 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 9 July 2015, the Player of Country B, Player A (hereinafter: Claimant), and the
Club of Country D, Club C (hereinafter: Respondent) signed an employment
contract valid from the date of signature until 30 June 2017.
2.
On 27 August 2016, the Claimant and the Respondent signed a settlement
agreement with regard to remuneration owed by the Respondent to the Claimant
on the basis of the employment contract.
3.
In accordance with the settlement agreement, the Respondent undertook to pay
to the Claimant the amount of EUR 1,800,000 in three instalments of EUR 600,000
each, falling due on 2 October 2016, 1 January 2017 and 1 April 2017 respectively.
4.
By correspondence dated 2 February 2017, the Claimant put the Respondent in
default of payment of the second instalment of EUR 600,000, setting a time limit
expiring on 13 February 2017 in order to remedy the default.
5.
On 14 February 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 EUR 600,000 corresponding to the instalment that fell due on 1
January 2017 in accordance with the settlement agreement.
6.
The Claimant further asks to be awarded interest of 5% p.a. on said amount as of
2 January 2017.
7.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, 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 14 February
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).
Player A, Country B / Club C, Country D
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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 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.
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 14 February
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 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 following the conclusion of an
employment contract on 9 July 2015, the Claimant and the Respondent signed a
settlement agreement on 27 August 2016, in accordance with which the
Respondent undertook to pay to the Claimant the amount of EUR 1,800,000 in
three instalments of EUR 600,000 each, falling due on 2 October 2016, 1 January
2017 and 1 April 2017 respectively.
6.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining
that the Respondent has overdue payables towards him in the amount of EUR
600,000 corresponding to the instalment that fell due on 1 January 2017 in
accordance with the settlement agreement.
7.
In this context, the Chamber took particular note of the fact that, on 2 February
2017, the Claimant put the Respondent in default of payment of the EUR 600,000
that fell due on 1 January 2017, setting a time limit expiring on 13 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
Player A, Country B / Club C, Country D
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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 Chamber 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 Chamber
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 settlement
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant the amount of EUR 1,800,000 in three instalments of EUR 600,000 each,
falling due on 2 October 2016, 1 January 2017 and 1 April 2017 respectively.
12. Taking into account the documentation presented by the Claimant in support of his
petition, the Chamber 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 amount of EUR
600,000 corresponding to the aforementioned instalment that fell due on 1 January
2017.
14. In addition, the Chamber 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 amount of EUR 600,000.
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. on the amount of EUR 600,000 as of 2
January 2017 until the date of effective payment.
17. In continuation, taking into account the consideration under number II./14., above,
the Chamber referred to art.12bis par. 2 of the Regulations which stipulates that
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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.
18. The DRC 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 Chamber
highlighted that, on 2 previous occasions, 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
claims, as a result of which fines had been imposed on the Respondent by the
Players’ Status Committee and the Dispute Resolution Chamber. Consequently, the
DRC established that the Respondent has delayed a due payment for more than 30
days without a prima facie contractual basis and without having answered to the
claim for the third time.
19. 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.
20. Bearing in mind the considerations under numbers II./18 and II./19 above, the DRC
decided that in the event that the Respondent does not pay the amount due to the
Claimant within the 30 days following the notification of the present decision, a ban
from registering any new players, either nationally or internationally, for the next
entire registration period following the notification of the present decision shall
become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) 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, w ithin 30 day s as from the
date of notification of this decis ion, overdue payables in the amount of EUR
600,000, plus interest at the rate of 5% p.a. as of 2 January 2017 until the date of
effective payment.
3.
In the event that the amount plus 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.
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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 of
every payment received.
5.
In the event that the amount due to the Claimant is not paid by the Respondent
within 30 days as from the date of notification of this decision, the Respondent
shall be banned from registering any new players, either nationally or
internationally, for the next entire registration period following the notification of
the present decision.
*****
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
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