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: the Respondent) signed an
employment contract valid as from “the start of the pre-season practice for 2018 till
the end of Football Season in Country D of 2018”.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, a monthly salary of USD 1,500 payable by no later than the
12th day of the following month.
3.
On 30 July 2018, by means of a letter, the Claimant requested the Respondent to be
paid the total amount of USD 3,000 corresponding to the outstanding monthly
salaries of May and June 2018.
4.
On 30 July 2018, the Respondent replied to the Claimant’s letter stating the
following: “[…] 1. The [Respondent] is obliged to pay an amount of USD 3,000 to
the [Claimant] as outstanding salary for the services provided by the [Claimant] to
the [Respondent]. 2. The [Respondent] is obliged to pay the amount mentioned on
[point] 1, by the end of 31 August 2018 to an account specified by the [Claimant]…”.
5.
By correspondence dated 7 November 2018, the Claimant put the Respondent in
default of payment of USD 3,000 corresponding to the monthly salaries of May and
June 2018, setting a time limit expiring on 17 November 2018 in order for the club to
remedy the default.
6.
On 3 December 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 USD 3,000 corresponding to the monthly salaries of May and June
2018 in the amount of USD 1,500 each.
7.
The Claimant further asks to be awarded interest of 5% p.a. as from the respective
due dates, as well as that the Respondent be ordered to “bear all costs incurred with
the present procedure”.
Player A, Country B / Club C, Country D
Page 2 of 7
8.
In spite of having been invited to do so, the Respondent has not replied to the claim.
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 3 December 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 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 3 December
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.
Player A, Country B / Club C, Country D
Page 3 of 7
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from “the start of the preseason practice for 2018 till the end of Football Season in Country D of 2018”, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, a monthly salary of USD 1,500 payable by no later than the 12 th day of the
following month.
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
3,000 corresponding to the monthly salaries of May and June 2018.
7.
In this context, the DRC judge took particular note of the fact that, on 7 November
2018, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit expiring on 17 November 2018 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
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,
failed to present its response to the claim of the Claimant, in spite of having been
invited to do so. In this way, the DRC judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
11.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant, inter alia, a monthly salary of USD 1,500.
Player A, Country B / Club C, Country D
Page 4 of 7
12.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
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 3,000 corresponding to the monthly salaries of May and June 2018.
14.
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.
15.
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 3,000.
16.
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. as of the day following the
day on which the relevant payments fell due, until the date of effective payment.
17.
Furthermore, as regards the claimed legal expenses, the DRC judge referred to art.
18 par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the DRC judge decided to reject the Claimant’s request relating to the “costs
incurred with the present procedure”.
18.
In continuation, taking into account the consideration under number II./14. 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 by 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 11 September 2018, the Respondent had already been
found to have delayed a due payment for more than 30 days without a prima facie
Player A, Country B / Club C, Country D
Page 5 of 7
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.
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 a more severe penalty.
21.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as
well as the considerations under numbers II./19. and II./20. above, the deciding body
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 3,000 as well as the aggravating circumstance of a repeated
offence, the DRC judge regarded a fine amounting to CHF 1,500 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 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 USD 3,000,
plus interest at the rate of 5% p.a. on the amount of USD 3,000 as follows:
a. on the amount of USD 1,500 as from 13 June 2018 until the effective date of
payment;
b. on the amount of USD 1,500 as from 13 July 2018 until the effective date of
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.
Any further request filed by the Claimant is rejected.
Player A, Country B / Club C, Country D
Page 6 of 7
5.
6.
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.
The Respondent is ordered to pay a fine in the amount of
CHF 1,500. 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 no. 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
Page 7 of 7