DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 2 May 2019,
by Jon New m an (USA), 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 an unspecified date, 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 16 January 2018 until 31 May 2018.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, USD 8,000 per month as “from 16 Jan. to end of may 2018”.
3.
By correspondence dated 13 January 2019, the Claimant put the Respondent in
default of payment of the amount of USD 40,000, corresponding to 5 monthly
salaries, setting a 10 days’ time limit in order to remedy the default.
4.
On 7 February 2019, 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 40,000, corresponding to the salaries as from January 2018 until 31
May 2018.
5.
The Claimant further asks to be awarded interest of 5% p.a. as of the due date of
each payment.
6.
In reply to the claim, the Respondent acknowledged having an outstanding amount
of USD 14,678 towards the Claimant and held that it was willing to pay it. However,
the Respondent alleged that it was unable to properly transfer the money to the
Claimant since Country B (player’s country) is falling under economic sanctions.
7.
After having been invited to present his comments on the Respondent’s reply, the
Claimant did not provide FIFA with his replica.
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 7 February 2019. 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).
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
Player A, Country B / Club C, Country D
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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 7 February
2019, 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 16 January 2018 until 31
May 2018, in accordance with which the Claimant was entitled to receive from the
Respondent a monthly salary of USD 8,000.
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
40,000, corresponding to 5 monthly salaries.
7.
In this context, the DRC judge took particular note of the fact that, on 13 January
2019, 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 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 DRC judge took into account that the Respondent, for its part,
acknowledged having an outstanding amount of USD 14,678 towards the Claimant,
which it was allegedly willing to pay it. However, the Respondent maintained that it
was unable to properly transfer the money to the Claimant since Country B (i.e., the
player’s country) is falling under economic sanctions.
Player A, Country B / Club C, Country D
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10.
In this regard, the DRC judge 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.
11.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
12.
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
USD 40,000 corresponding to the salaries as from January 2018 until 31 May 2018 in
the amount of USD 8,000 each.
13.
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.
14.
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 USD 40,000.
15.
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 each of the relevant
payment(s) as of the day following the day on which the relevant payment(s) fell
due, until the date of effective payment.
16.
In continuation, taking into account the consideration under number II./13. 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.
17.
With the above in mind, 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 27 September 2018, 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 claim, as a result of which a fine had been imposed on the
Respondent by the DRC judge.
Player A, Country B / Club C, Country D
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18.
In this connection, the DRC judge wished to highlight that a repeated offence will
be considered as an aggravating circumstance and lead to a more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
19.
Bearing in mind that the Respondent replied to the claim of the Claimant as well as
the considerations under numbers II./17. and II./18. 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
USD 40,000 as well as the aggravating circumstance of the repeated offence, the
DRC judge regarded a fine amounting to CHF 5,000 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, within 30 days as from the date
of notification of this decision, overdue payables in the amount of USD 40,000, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a. on the amount of USD 8,000 as from 1 February 2018;
b. on the amount of USD 8,000 as from 1 March 2018;
c. on the amount of USD 8,000 as from 1 April 2018;
d. on the amount of USD 8,000 as from 1 May 2018;
e. on the amount of USD 8,000 as from 1 June 2018.
3.
In the event that the aforementioned amount plus interest, 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 5,000. 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:
Emilio García Silvero
Chief Legal Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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