DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 17 May 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
John Bram hall (England), member
S tijn Boey kens (Belgium ), member
Philippe Diallo (France), member
Jérôm e Perlem uter (France) , 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 3 July 2014, 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 valid as from 4 July 2014 until 30 June 2017
(hereinafter: the contract).
2.
On 5 June 2017, the Claimant and the Respondent signed an agreement
(hereinafter: the settlement agreement) by means of which they settled a
contractual dispute arisen between them (cf. case nr. XXX) and they
terminated the contract with immediate effect.
3.
In accordance with the settlement agreement, the Respondent undertook to
pay the Claimant the amount of EUR 5,500,000 in two instalments of EUR
2,750,000 each, on the following dates respectively: 15 July 2017 and 15
September 2017.
4.
By correspondence dated 17 October 2017, the Claimant put the Respondent
in default of the payment of the amount of EUR 2,750,000, corresponding to
the second instalment set out in the settlement agreement, setting a 10 days’
time limit in order to remedy the default.
5.
On 26 January 2018, the Claimant lodged a claim against the Respondent in
front of FIFA, asking that the Respondent be ordered to pay him overdue
payables in the amount of EUR 2,750,000, corresponding to the second
instalment of the settlement agreement, which was payable on 15 September
2017.
6.
The Claimant further asked to be awarded interest of 5% on the
aforementioned amount as from 15 September 2017 until the date of
effective payment.
7.
In reply to the claim, the Respondent affirmed that it did not pay the amount
claimed by the Claimant due to financial difficulties. Furthermore, the
Respondent stated that it did not receive any default notice from the
Claimant and, consequently, argued that the Respondent had no overdue
payables towards him.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
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, it took note that the present matter was submitted to FIFA on 26
January 2018. Consequently, the 2018 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution
Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand
(cf. art. 21 of the Procedural Rules).
2.
Subsequently, 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
2018), it 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 DRC 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 2018) and considering that the present claim was lodged on
26 January 2018, the 2018 edition of said regulations (hereinafter:
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 DRC 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, on 3 July 2014, the Claimant
and the Respondent signed an employment contract valid as from 4 July 2014
until 30 June 2017.
6.
Furthermore, the members of the Chamber observed that, on 5 June 2017,
the Claimant and the Respondent signed a settlement agreement.
7.
In continuation, the Chamber noted that, in accordance with the settlement
agreement, the Respondent undertook to pay to the Claimant EUR 5,500,000
Player A, Country B / Club C, Country D
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in two instalments of EUR 2,750,000 each, on 15 July 2017 and 15 September
2017 respectively.
8.
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 2,750,000, corresponding to the second instalment set
out in the settlement agreement.
9.
In this context, the DRC took particular note of the fact that, on 17 October
2017, the Claimant sent a letter to the Respondent, by means of which he put
it in default of payment of the amount of EUR 2,750,000, setting a 10 days’
time limit in order to remedy the default.
10.
Subsequently, the DRC took into account that the Respondent, for its part,
maintained that it did not pay the claimed amount due to financial
difficulties. Moreover, the Respondent stressed that it did not receive any
default notice from the Claimant and, consequently, argued that it had no
overdue payables towards him.
11.
As to the Respondent’s first argument, the members of the Chamber recalled
the long-standing jurisprudence of the DRC, according to which financial
difficulties cannot be invoked by a club in order to justify the non-fulfilment
of its financial obligations.
12.
In continuation, as to Respondent’s allegation that it did not receive the
Claimant’s default notice and, consequently, argued that it did not have
overdue payables towards the Claimant, the DRC recalled the basic principle
of burden of proof, as established in art. 12 par. 3 of the Procedural Rules,
according to which a party claiming a right on the basis of an alleged fact
shall carry the respective burden of proof.
13.
With the above in mind, the members of the Chamber, after a thorough
analysis of the documentation submitted by the parties, were eager to
emphasise that the Claimant submitted, inter alia, the delivery report, via
courier, of the default notice he sent to the Respondent. As such, the
Chamber was of the opinion that the Claimant demonstrated, to its
satisfaction, having duly put the Respondent in default.
14.
Consequently, the DRC concluded that the Claimant 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
Player A, Country B / Club C, Country D
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and have granted a deadline of at least ten days for the debtor club to
comply with its financial obligation(s).
15.
In view of the aforementioned considerations, the members of the Chamber
considered that the arguments raised by the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward by the Respondent in
its defence do not exempt the Respondent from its obligation to fulfil its
contractual obligations towards the Claimant.
16.
Consequently, the members of the Chamber decided to reject the
argumentations put forward by the Respondent in its defence.
17.
On account of the aforementioned considerations, the DRC established that
the Respondent failed to remit the Claimant’s remuneration in the total
amount of EUR 2,750,000, corresponding to the second instalment provided
in the settlement agreement.
18.
In addition, the DRC established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
19.
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 2,750,000.
20.
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 2,750,000, as from 16 September 2017 until the date of effective
payment.
21.
In continuation, taking into account the consideration under number II./18.
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.
22.
In this regard, the Chamber established that, in virtue of art. 12bis par. 4 of
the Regulations, it has competence to impose sanctions on the Respondent
and highlighted that, on 27 April 2016 (ref. XXX) and on 26 May 2016 (ref.
XXX) both by the Single Judge of the Players’ Status Committee, and on 26
Player A, Country B / Club C, Country D
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October 2016 (ref. XXX/emo) by the Dispute Resolution Chamber, the
Respondent had already been found to have delayed a due payment for
more than 30 days without a prima facie contractual basis, as a result of
which a warning, a reprimand and a fine respectively had been imposed on
the Respondent. Consequently, the DRC established that the Respondent has
delayed a due payment for more than 30 days without a prima facie
contractual basis, for the fourth time.
23.
Moreover, the Dispute Resolution 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.
24.
Bearing in mind the considerations under numbers II./22. and II./23. above,
the Chamber 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 partially 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 decision, overdue payables in the amount of
EUR 2,750,000, plus interest at the rate of 5% p.a. as from 16 September 2017
until the date of effective payment.
3.
In the event that the aforementioned amount plus interest is not paid to the
Claimant 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 claim lodged 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 B / Club C, Country D
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6.
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
Player A, Country B / Club C, Country D
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