DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 May 2017,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
John Bramhall (England), member
Takuya Yamazaki (Japan), member
Mohamed Al Saikhan (Saudi Arabia), member
Wouter Lambrecht (Belgium), member
on the claim presented by the player,
Player 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 case
1.
On 16 February 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 as from its signature date until 31 December 2016.
2.
On 31 March 2016, the Claimant and the Respondent signed an agreement by means
of which said employment contract was terminated by mutual consent (hereinafter:
termination agreement).
3.
According to art. 2 of the termination agreement, the Respondent undertook to pay
to the Claimant the amount of USD 480,000 as follows: USD 200,000 by 20 April
2016, USD 100,000 by 1 September 2016, USD 90,000 by 1 December 2016 and USD
90,000 by 1 March 2017. Art. 2 of the termination agreement further reads that the
aforementioned amounts will be paid at the rate of the national bank of Country D
at the date of payment.
4.
According to art. 3 of the termination agreement, the Claimant and the Respondent
agreed that in case of “failure, delays or partial payment of any of the abovementioned installments”, the remaining instalments will become due “at once”.
5.
On 2 February 2017, the Claimant put the Respondent in default of payment of the
amount of USD 280,000, plus 5% interest p.a. on said amount calculated as from 2
September 2016, and granted the Respondent a deadline of ten days within which
to remedy the default. In his default notice, the Claimant specified that his letter
resulted from the fact that the instalment of 1 September 2016 had remained
unpaid.
6.
On 6 February 2017, the Respondent replied to the Claimant by asking him to
provide it with a copy of the agreement at the basis of his request, so that it could
consider the matter. In this respect, the Respondent informed the Claimant that
within the framework of criminal proceedings involving its former head, the
anticorruption investigators had seized many of the club’s documents for their
investigation.
7.
On 17 February 2017, the Claimant lodged a claim for outstanding receivables
against the Respondent in front of FIFA.
8.
In his claim, the Claimant explained that after the signature of the termination
agreement and remittance of the first instalment, the Respondent ceased all
payments. In particular, the Claimant explained that following his default notice, the
Respondent had not made any payment.
Player A, Country B / Club C, Country D
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9.
On account of the aforementioned facts and the relevant clause of the termination
agreement, the Claimant requested that the Respondent be ordered to pay him USD
280,000, plus 5% interest p.a. on said sum, calculated as from 2 September 2016.
10.
In its reply to the claim, the Respondent requested that the proceedings at hand be
suspended pending the development of the criminal investigation involving its
former head.
11.
The Respondent further indicated that it is possible that the court rules illegal the
document signed by its former head and that for the time being, it is impossible for
the club to “state an affirmative position regarding the claim of [the player] before
the end of the pre-trial investigation.”
II.
Considerations of the Dispute Resolution Chamber
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 17 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).
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 17 February 2017, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
Player A, Country B / Club C, Country D
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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 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, on 16 February 2015, the Claimant and
the Respondent signed an employment contract, which was terminated by the
parties with mutual consent on 31 March 2016 in accordance with the termination
agreement.
6.
The members of the Chamber duly noted that in accordance with the termination
agreement, the Respondent undertook to pay the amount of USD 480,000 in various
instalments to the Claimant and that in the event of failure or delay in payment of
any of the relevant instalments the remaining unpaid instalments would fall due at
once.
7.
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 USD
280,000 based on the fact that the Respondent had failed to pay the instalment of
USD 100,000 that fell due on 1 September 2016 in accordance with the termination
agreement. According to the Claimant, the Respondent had only paid him the first
instalment and subsequently had ceased any further payments. Therefore, the
Claimant asked to be awarded the amount of USD 280,000 pertaining to the entirety
of the remaining unpaid instalments in accordance with the termination agreement
as well as 5% interest p.a. on said amount as of 2 September 2016.
8.
In this context, the DRC took particular note of the fact that with his correspondence
dated 2 February 2017, the Claimant put the Respondent in default of payment of
the amount of USD 280,000 setting a 10 days’ time limit to remedy default.
9.
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 B / Club C, Country D
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10.
Subsequently, the DRC took into account that the Respondent, for its part, asked
that the proceedings in the matter at hand be suspended in the light of ongoing
criminal investigations into the Respondent’s former head and pending the outcome
of such investigations. In this regard, the members of the Chamber noted that the
termination agreement appears to have been signed by the person referred to by
the Respondent as its former head.
11.
The DRC took particular note that the Respondent does not allege that the
termination agreement is falsified or that the former head was not entitled to sign
the termination agreement.
12.
After due consideration, the members of the Chamber agreed that the Respondent’s
request for the suspension of the proceedings cannot be accommodated and
stressed that the termination agreement was signed by the Claimant in good faith.
In addition, the DRC deemed that the situation as described by the Respondent
cannot be considered a valid reason to withhold payment of the amounts agreed
upon by and between the parties in accordance with the termination agreement.
13.
Having said that, the Chamber pointed out that the clause relating to the exchange
rate included in the termination agreement is rather unclear and was not referred to
by the parties. Consequently, the Chamber confirmed that the relevant amount is
awarded in USD, as per art. 2 of the termination agreement.
14.
On the basis of the above considerations, the Chamber concluded that the
Respondent failed to pay the instalment of USD 100,000 that fell due on 1
September 2016 and that, consequently, in accordance with art. 3 of the termination
agreement, all of the remaining unpaid instalments totalling USD 280,000 have
fallen due as from 2 September 2016.
15.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
16.
On account of the above, 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 USD 280,000.
17.
In addition, taking into consideration the Claimant’s request as well as the
Chamber’s constant jurisprudence, the Chamber decided to award the Claimant
interest at the rate of 5% p.a. on the outstanding amount as of the day following
the day on which it fell due, i.e. 2 September 2016.
18.
In continuation, taking into account the consideration under number II./15. above,
the DRC referred to art.12bis par. 2 of the Regulations which stipulates that any club
Player A, Country B / Club C, Country D
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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.
19.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. 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 DRC decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
20.
In this connection, 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, 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 280,000 plus
5% interest p.a. as of 2 September 2016 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.
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 Dispute
Resolution Chamber of every payment received.
Player A, Country B / Club C, Country D
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5.
A warning is imposed on the Respondent.
*****
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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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