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, from country A
as Claimant / Counter-Respondent
against the club,
Club B , from country B
as Respondent / Counter-Claimant
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
At an unknown date, the player, Player A, from country A (hereinafter the
Claimant/Counter-Respondent or the player) and the club, Club B, from country B
(hereinafter: the Respondent/Counter-Claimant or the club) signed an employment
contract (hereinafter: the contract) valid as from 1 January 2016 until 31 December
2016.
2.
In accordance with the contract, the club undertook to pay to the player a bonus of
USD 20,000 in case the club wins the “Women’s Super League”.
3.
On 28 September 2018, and completed on 23 October 2018, the player lodged a
claim against the club in front of FIFA asking that the club be ordered to pay to her
overdue payables in the amount of USD 20,000 corresponding to the bonus for the
Women’s Super League 2016.
4.
The player further asks to be awarded interest as from 1st November 2016 until the
date of effective payment and that the club be ordered to pay legal costs.
5.
By correspondence dated 10 October 2018, the player put the club in default of
payment of USD 20,000 setting a 10 days’ time limit in order to remedy the default.
6.
In reply to the claim, the club held that the player received a gold medal “made of
300gAu 999 pure gold” for a value of approximatively USD 20,000 instead of the
bonus and that the player never complained about receiving the medal instead of
the bonus. The club lodged a counterclaim against the player, that should the player
be entitled to USD 20,000 then the player should be ordered to give back the gold
medal to the club.
7.
In his replica, the player argued that the contract only mentioned the amount of
USD 20,000 for the payment of the above-mentioned bonus, and held that the gold
medal was a gift from the club to all the members of the team.
8.
In its final comments, the club insisted that the gold medal is of a value of USD
20,000 and could not be just a gift. The club added that the player did not complain
before the claim was lodged. The club insisted on its counterclaim.
Player A, from country A, / Club B, from country B
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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 28 September 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).
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 from
country A and a Club from country B.
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 28 September
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 player and the club signed
an employment contract valid as from 1 January 2016 until 31 December 2016, in
accordance with which the player was entitled to receive from the club, inter alia, a
bonus of USD 20,000 in case the player wins the “Women’s Super League”.
6.
The player lodged a claim against the club in front of FIFA, maintaining that the club
has overdue payables towards her in the total amount of USD 20,000 corresponding
to the bonus for winning the Women’s Super League.
Player A, from country A, / Club B, from country B
Page 3 of 7
7.
In this context, the DRC judge took particular note of the fact that, on 10 October
2018, the player put the club in default of payment of the aforementioned amounts,
setting a 10 days’ time limit in order for the Respondent to remedy the default.
8.
Consequently, the DRC judge concluded that the Claimant/Counter-Respondent 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).
9.
Subsequently, the DRC judge took into account that the club, for its part, held that
the player received a gold medal ”made of 300gAu 999 pure gold” for a value of
USD 20,000 instead of the bonus of USD 20,000. The DRC judge noted that the
Respondent/Counter-Claimant lodged a counterclaim against the Claimant/CounterRespondent, requesting that in case the DRC judge was to decide that the player is
entitled to USD 20,000, then the player should be ordered to give back the gold
medal.
10.
Following this, the DRC judge took note that in his replica, the player emphasized
that the contract makes no references to a gold medal, but only to a bonus of USD
20,000.
11.
In its final comments, the DRC judge noted that the club reiterated its previous
arguments.
12.
In this regard, the DRC judge was eager to underline that the club does not contest
the event giving rise to the bonus, and further noted that contract does not make
any references to a gold medal. In any case, DRC judge emphasized that the club had
not provided any evidence of the alleged acceptation of the gold medal instead of
the bonus provided by the contract.
13.
Following this, the DRC judge considered that the arguments raised by the
Respondent/Counter-Claimant cannot be considered a valid reason for non-payment
of the monies claimed by the player, in other words, the reasons brought forward by
the club in its defence do not exempt the club from its obligation to fulfil its
contractual obligations towards the player. Moreover, the DRC judge deemed
appropriate to emphasise that the counterclaim lodge by the Respondent/CounterClaimant had no contractual basis.
14.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent/Counter-Claimant in its defence, and to fully reject its counterclaim.
Player A, from country A, / Club B, from country B
Page 4 of 7
15.
On account of the aforementioned considerations, the DRC judge established that
the club failed to remit the player’s remuneration in the total amount of USD 20,000
corresponding to the bonus for winning the Women’s Super League.
16.
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.
17.
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 20,000.
18.
In addition, taking into consideration the Claimant/Counter-Respondent’s claim, and
taking into consideration the absence in the contract of a due date for the requested
bonus, the DRC judge decided to award the player interest at the rate of 5% p.a. on
the above-mentioned amount as from the day following the end of the contract, i.e.
1 January 2017 until the date of effective payment.
19.
Moreover, the DRC judge decided to reject the player’s claim pertaining to legal
costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
20.
In continuation, taking into account the consideration under number II./16 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.
21.
Having said that, the DRC judge took note that the Respondent/Counter-Claimant is
involved in one other dispute in connection with overdue payables (case ref. nr.
XXX) which, in addition to the present matter, has been submitted to him today.
22.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the club. Therefore, bearing in mind that
the club duly replied to the claim of the player and in the absence of the
circumstance of repeated offence, the DRC judge decided to impose a warning on
the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
23.
In this respect, the DRC judge 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.
Player A, from country A, / Club B, from country B
Page 5 of 7
III.
Decis ion of the DRC judge
1.
The claim of the Claimant/Counter-Respondent, Player A, is partially accepted.
2.
The counterclaim of the Respondent/Counter-Claimant, Club B, is rejected.
3.
The Respondent, Club B, has to pay to the Claimant/Counter-Respondent w ithin 30
day s as from the date of notification of this decision, overdue payables in the
amount of USD 20,000 plus 5% interest p.a. as from 1 January 2017 until the date of
effective payment.
4.
In the event that the amount plus interest due to the Claimant/Counter-Respondent
in accordance with the above-mentioned number 3 is not paid by the
Respondent/Counter-Claimant within the stated time limits, the present matter shall
be submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
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 DRC judge
of every payment received.
6.
Any further claim lodged by the Claimant/Counter-Respondent is rejected.
7.
A warning is imposed on the Respondent/Counter-Claimant.
Player A, from country A, / Club B, from country B
Page 6 of 7
*****
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, from country A, / Club B, from country B
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