DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 7 May 2018,
by Philippe Diallo (France), DRC judge,
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 23 January 2017, the player of Country B, Player A (hereinafter: Claimant), and
the club of Country D, Club C (hereinafter: Respondent) signed an employment
contract (hereinafter: the contract) valid as from 20 January 2017 until 31 May 2018.
2.
On 26 July 2017, the Claimant and the Respondent signed a termination agreement
by means of which the parties mutually agreed to terminate the contract.
3.
In accordance with the termination agreement, the Respondent undertook to pay to
the Claimant inter alia EUR 3,800 “within September 2017”.
4.
By correspondence dated 26 January 2018, the Claimant put the Respondent in
default of payment of EUR 3,800 setting a 10 days’ time limit to remedy the default.
5.
On 12 February 2018, 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 3,800 corresponding to the amount established in the
termination agreement.
6.
The Claimant further asked to be awarded interest of 5% p.a. as of 1 October 2017.
7.
In reply to the claim, the Respondent sent an illegible document titled “transfer
order form” as alleged proof of payment without providing further comments. In
this regard, despite FIFA’s request to the Respondent to provide a legible version of
the document, the Respondent did not send a legible version of it, and instead
provided another illegible copy.
8.
In his replica, the Claimant held that the alleged proof of payment sent by the
Respondent was illegible and that no beneficiary nor amounts were indicated. The
Claimant, furthermore, denies having received the requested amount.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 12 February 2018. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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 DRC judge referred to art. 3 par. 2 and par. 3 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
2018) he 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 judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he 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 12 February
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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 20 January 2017 until 31
May 2018. Moreover, the DRC judge further acknowledged that the Claimant and
the Respondent signed a termination agreement on 26 July 2017 by means of which
the parties mutually agreed to terminate the contract. In accordance with said
termination agreement, the Claimant was entitled to receive from the Respondent,
inter alia, EUR 3,800, amount that was payable “within September 2017”.
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
3,800 corresponding to the amount established in the termination agreement.
7.
In this context, the DRC judge took particular note of the fact that, on 26 January
2018, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a 10 days’ time limit in order to remedy the
default.
8.
Consequently, the DRC judge 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
Player A, Country B / Club C, Country D
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granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
9.
Subsequently, the DRC judge took into account that the Respondent, for its part,
sent an illegible document as reply to the claim without any further comments.
10.
Furthermore, the DRC judge observed that although being invited by FIFA
administration to provide a legible copy of said document, the Respondent
submitted, once again, an illegible one.
11.
The Claimant, on his part, denied receiving the claimed amounts and further
sustained that the document presented by the Respondent does not contain the
beneficiary nor the amounts allegedly paid.
12.
The DRC judge found that since the document presented by the Respondent cannot
be considered as conclusive and satisfactory proof of payment and as the Claimant
denied receiving the requested amount, the document brought forward by the
Respondent in its defence does not exempt the Respondent from its obligation to
fulfil its contractual obligations towards the Claimant.
13.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
14.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of
EUR 3,800 corresponding to the amount established in the termination agreement,
that was supposed to be paid “within September 2017”. Taking that into account,
the DRC judge considered that the payment was supposed to be made at the end of
September 2017 at the latest.
15.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
16.
Consequently, the DRC judge 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 3,800.
17.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR
3,800 as from 1 October 2017 until the date of effective payment.
Player A, Country B / Club C, Country D
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18.
In continuation, taking into account the consideration under number II./15. above,
the DRC judge 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.
19.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. In this context, the DRC
judge highlighted that, on 23 November 2017 and 15 December 2017, 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 two fines had been imposed
on the Respondent by the DRC Judge.
20.
Moreover, the DRC judge 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.
21.
Bearing in mind that the Respondent has replied to the claim of the Claimant as well
as the considerations under numbers II./19. and II./20. above, the DRC judge decided
to impose a more severe 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 3,800, as well as the aggravating circumstance of a repeated offence, the DRC
judge regarded a fine amounting to 2,000 as appropriate and hence decided to
impose said fine on the Respondent.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant overdue payables in the amount
of EUR 3,800 w ithin 30 day s as from the date of notification of this decision, plus
interest at the rate of 5% p.a. as from 1 October 2017 until the date of effective
payment.
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.
Player A, Country B / Club C, Country D
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5. The Respondent is ordered to pay a fine in the amount of
CHF 2,000. The fine is to be paid w ithin 30 day s of notification of the present
decision to FIFA to the following bank account with reference to case nr. XXX:
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 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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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