DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 30 June 2016,
Theo van Seggelen (Netherlands), DRC judge,
on the claim presented by the player,
A, country S
as Claimant
against the club,
B, country I
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 16 July 2014, the player from country S, A (hereinafter: Claimant), and the club
from country I, club B (hereinafter: Respondent) signed an employment contract valid
as from the date of signature until 22 May 2015.
2.
In accordance with the employment contract, the Respondent undertook to pay to the
Claimant inter alia the remuneration in the total amount of USD 130,000 payable as
follows:
“23% of the amount which is equal to USD 30,000” on the date of signature;
10 instalments of USD 10,000 each, the first due on 21 August 2014 and the
last on 21 May 2015.
3.
By correspondence dated 2 March 2016, the Claimant put the Respondent in default of
payment of USD 33,000 setting a 10 days’ time limit in order to remedy the default.
4.
On 25 May 2016, and completed on 30 May 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 33,000 corresponding to part of the salary due
on 21 February 2015 in the amount of USD 3,000 and the salaries due respectively on
21 March 2015, 21 April 2015 and 21 May 2015, in the amount of USD 10,000 each.
5.
The Claimant further asks to be awarded interest as from 21 May 2015.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
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 25 May 2016. Consequently, the Rules Governing the Procedures of the Players’
Status 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 I.
Player A, country S / Club B, country I
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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 25 May 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 from 16 July 2014 until 22 May 2015, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, remuneration in the total amount of USD 130,000.
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 33,000
corresponding to part of the salary due on 21 February 2015 in the amount of USD
3,000 and the salaries due respectively on 21 March 2015, 21 April 2015 and 21 May
2015, in the amount of USD 10,000 each.
7.
In this context, the DRC judge took particular note of the fact that, on 2 March 2016,
the Claimant put the Respondent in default of payment of the aforementioned
amounts, 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 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.
Player A, country S / Club B, country I
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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 USD 10,000 each month as from 21 August 2014 until 21 May
2015.
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
33,000 corresponding to part of the salary due on 21 February 2015 in the amount of
USD 3,000 and the salaries due respectively on 21 March 2015, 21 April 2015 and 21
May 2015, in the amount of USD 10,000 each.
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 33,000.
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. 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.
17.
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.
18.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. On account of the above and
bearing in mind that the Respondent did not reply to the claim of the Claimant, the
Player A, country S / Club B, country I
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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 33,000, the DRC judge regarded a fine amounting to CHF 5,000 as
appropriate and hence decided to impose said fine on the Respondent.
19.
In this connection, 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 33,000, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of USD 23,000 as from 21 May 2015;
b. 5% p.a. on the amount of USD 10,000 as from 22 May 2015.
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.
5.
The Respondent is ordered to pay a fine in the amount of CHF 5,000. 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)
Player A, country S / Club B, country I
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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 I
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