DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 3 June 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
A, country S
represented by Mr xxxx
as Claimant
against the club,
B, country T
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 3 February 2014, the player from country S, A (hereinafter: Claimant), and the club
from country T, club B (hereinafter: Respondent) signed an employment contract valid as
from the date of signature until 31 May 2014.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant a monthly salary of USD 4,000 on the 20th day of February, March, April and
May 2014. The Claimant was further entitled to receive payment of USD 1,000 per match
for a total of 15 matches, the final amount of which depends on the Claimant’s
participation in these matches.
3.
By correspondence dated 11 January 2016, the Claimant put the Respondent in default
of payment of the amount of USD 8,000 in relation with his salary for April and May
2014, setting a time limit of 10 days in order to remedy the default.
4.
On 4 January 2016, and completed on 25 January 2016, 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 8,000 corresponding to the two monthly
salaries of USD 4,000 each that fell due on 20 April 2014 and 20 May 2014, respectively.
5.
The Claimant further asks to be awarded interest of 5% p.a. on the relevant instalments
as from the day following the respective due dates.
6.
In reply to the claim, the Respondent holds that the Claimant was entitled to receive USD
5,500 in per match payments in addition to the USD 16,000 in salary.
7.
The Respondent asserts having paid USD 14,185.85 to the Claimant and that therefore
the amount of USD 7,314.15 remains unpaid.
8.
However, the Respondent rejects the claim, since it considers that the Claimant has not
presented any documents in support of his request for USD 8,000.
9.
In his replica, the Claimant confirmed that the total amount payable to him was of USD
21,500 and that the burden of proof for its statement that only USD 7,314.15 was
outstanding is on the Respondent.
10.
In its duplica, the Respondent reiterated its position.
II.
Considerations 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 4
January 2016. Consequently, the Rules Governing the Procedures of the Players’ Status
Player A, country S/ Club B, country T
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Committee and the Dispute Resolution Chamber (edition 2015; 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 2016) 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 S and a club
from country T.
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 2016), and
considering that the present claim was lodged on 4 January 2016, the 2015 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 3 February 2014 until 31 May 2014, in
accordance with which the Claimant was entitled to receive from the Respondent 4
monthly salaries of USD 4,000 each as well as per match payments for a total of 15
matches.
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 8,000
corresponding to 2 monthly salaries of USD 4,000 each that fell due on 20 April and 20
May 2014, respectively. The Claimant further asks to be awarded interest of 5% on the
relevant instalments as from the day following the respective due dates.
7.
In this context, the DRC judge took particular note of the fact that, on 11 January 2016,
the Claimant put the Respondent in default of payment of the amount of USD 8,000,
setting a time limit of 10 days 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).
Player A, country S/ Club B, country T
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9.
Subsequently, the DRC judge took into account that the Respondent, for its part, held
that out of the total amount of USD 21,500 which the Claimant was entitled to receive in
salary and per match payments in accordance with the employment contract, it had paid
USD 14,185.85 to the Claimant, as result of which it considers that the amount of USD
7,314.15 remains unpaid.
10.
The DRC judge further noted that the Respondent rejects the claim, since it considers
that the Claimant failed to present documentation in support of his request to be
awarded USD 8,000.
11.
In this respect, the DRC judge recalled that in accordance with the employment contract
which was submitted by the Claimant along with his statement of claim, the Claimant
was entitled to receive inter alia a monthly salary of USD 4,000 as from February until
May 2014, thus the total amount of USD 8,000 for April and May 2014.
12.
Having said that and bearing in mind that the Respondent acknowledged that it would
owe the amount of USD 7,314.15 to the Claimant, the DRC judge focussed his attention
on the documentation presented by the Respondent in support of its position. In this
regard, the DRC judge noted that the receipts submitted by the Respondent do not all
allow to distinguish the purpose of payment and that the amount of USD 14,185.85
indicated by the Respondent is partially based on the exchange rate USD/XXX (xxxxxx).
13.
Consequently, the DRC judge concluded that the documentation submitted by the
Respondent does not constitute sufficient evidence corroborating the Respondent’s
position that instead of the claimed amount of USD 8,000 it would only owe USD
7,314.15 to the Claimant.
14.
In view of the above, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
15.
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
8,000 corresponding to the Claimant’s salary for April and May 2014.
16.
Furthermore, 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 8,000.
18.
In addition, taking into consideration the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided to award the
Player A, country S/ Club B, country T
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Claimant interest at the rate of 5% p.a. on each of the two salaries of USD 4,000 as of
the day following the day on which said instalments fell due.
19.
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.
20.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Moreover, the DRC judge recalled
that the Respondent has previously been found by the Dispute Resolution Chamber to
have neglected its contractual obligations towards players on multiple occasions in the
recent past. Therefore, the DRC judge decided to impose a 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 8,000, the DRC judge regarded a fine amounting
to CHF 1,000 as appropriate and hence decided to impose said fine on the Respondent.
21.
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.
III.
Decision of the DRC judge
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, club B, 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 8,000 plus 5%
interest p.a. until the date of effective payment as follows:
a. 5% p.a. as from 21 April 2014 on the amount of USD 4,000;
b. 5% p.a. as from 21 May 2014 on the amount of USD 4,000.
3.
In the event that the amount plus interest 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 S/ Club B, country T
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5.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 1,000. The fine is to be paid within 30 days of notification of the present decision
to FIFA to the following bank account with reference to case nr:
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 motivated decision (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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country S/ Club B, country T
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