DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 15 June 2017,
in the following composition:
Thom as Grim m (S w itzerland), Deputy Chairman
Mario Gallav otti (Italy ), member
Guillerm o S . Guale (Ecuador), member
Johan v an Gaalen (S outh Africa), member
Joaquim Ev angelis ta (Portugal), member
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 17 September 2015, 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 the date of its signature until 30 June 2016.
2.
According to the contract, the Claimant was entitled to receive from the
Respondent, inter alia, a monthly salary of EUR 3,800.
3.
On 6 January 2016, the Claimant and the Respondent concluded a termination
agreement whereby the parties terminated the employment contract and the
Respondent recognized having a debt towards the Claimant of EUR 15,200 and
undertook to pay the amount due in two equal instalments of EUR 7,600, payable
respectively on 1 February 2016 and 15 July 2016.
4.
By correspondence dated 15 July 2016 and 15 February 2017, the Claimant put the
Respondent in default of payment of the second instalment of EUR 7,600 due on 15
July 2016 in accordance with the termination agreement, setting a 10 days’ time
limit in order to remedy the default.
5.
On 27 January 2017, and completed on 8 March 2017, 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 EUR 7,600 corresponding to the
second instalment established in the termination agreement.
6.
The Claimant further asks to be awarded interest of 5% interest on the claimed
amount, without specifying the date as of which interest should apply.
7.
The Claimant further indicated that the first instalment was the object of another
claim already decided by the Dispute Resolution Chamber on 26 May 2016 (case XXXXXXX).
8.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: Chamber or DRC) analysed
whether it was competent to deal with the matter at hand. In this respect, it took
note that the present matter was submitted to FIFA on 27 January 2017.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
Player A, Country B / Club C, Country D
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2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b of
the Regulations on the Status and Transfer of Players (edition 2016), it 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 analysed which regulations should be applicable as to the
substance of the matter. In this respect, it 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 27 January 2017, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
4.
The competence of the DRC and the applicable regulations having been established,
the DRC entered into the substance of the matter. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence,
which it considered pertinent for the assessment of the matter at hand.
5.
Having said this, the DRC acknowledged that, on 17 September 2015, the Claimant
and the Respondent signed an employment contract valid from the date of
signature until until 30 June 2016. Subsequently, on 6 January 2016, the parties
concluded a termination agreement whereby the Respondent recognized having a
debt towards the Claimant in the amount of EUR 15,200 and undertook to pay the
relevant amount in two equal instalments of EUR 7,600, payable respectively on 1
February 2016 and 15 July 2016.
6.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining
that the Respondent has overdue payables towards him in the amount of EUR 7,600
corresponding to the second instalment established in the termination agreement.
7.
In this context, the DRC took particular note of the fact that, on 15 February 2017,
following a previous default notice, the Claimant put the Respondent in default of
payment of the aforementioned amount, setting a 10 days’ time limit for the
Respondent to remedy the default.
8.
Consequently, the Chamber 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 B / Club C, Country D
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9.
Subsequently, the members of the DRC 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 Chamber 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
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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 acknowledged that, in accordance with the termination
agreement provided by the Claimant, the Respondent was obliged to pay to the
Respondent the total amount of EUR 15,200 in two equal instalments.
12.
In this respect, the DRC took note that the Claimant had already lodged a claim
against the Respondent, requesting the payment of the first instalment established
in the termination agreement. In particular, the members of the Chamber took note
that the DRC had passed a decision on 26 May 2016 in the relevant matter.
13.
In continuation, taking into account the documentation presented by the Claimant
in support of his petition, the DRC concluded that the Claimant had substantiated his
claim pertaining to overdue payables with sufficient documentary evidence.
14.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the amount of EUR 7,600
corresponding to the second instalment in accordance with the termination
agreement.
15.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
16.
Consequently, the DRC 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 amount of EUR 7,600.
17.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of EUR 7,600 as of the
date on which the claim was lodged in front of FIFA, i.e. 27 January 2017.
18.
In continuation, taking into account the consideration under number II./15. above,
the Chamber 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
Player A, Country B / Club C, Country D
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facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
19.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. In this context, the Chamber
highlighted that on 18 May 2016 (YY-YYYYY), on 26 May 2016 (XX-XXXXX) and on
13 October 2016 (ZZ-ZZZZZ), the Respondent had already been found by the DRC
judge and the DRC to have delayed a due payment for more than 30 days without a
prima facie contractual basis.
20.
Having said that, the Chamber established that, in the present matter, the
Respondent is found to have delayed a due payment for more than 30 days without
a prima facie contractual basis for the fourth time.
21.
Moreover, the members of the Chamber wished to underline and took into account
that the Respondent had been found by the Dispute Resolution Chamber and/or the
DRC judge responsible for not complying with its financial obligations towards
players on various other occasions in the recent past.
22.
Along these lines, the DRC 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 more severe penalty.
23.
Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis
paras 7 and 8 of the Regulations, the DRC decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for
one entire registration period. The execution of this registration ban is suspended
during a probationary period of one year following the notification of the present
decision. If the Respondent commits another infringement during the one year
probationary period, the suspension is automatically revoked and the registration
ban executed.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is 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 EUR 7,600,
plus interest at the rate of 5% p.a. as from 27 January 2017 until the date of effective
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.
Player A, Country B / Club C, Country D
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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 Dispute
Resolution Chamber of every payment received.
5.
The Respondent shall be banned from registering any new players, either nationally
or internationally, for one entire registration period. The execution of this
registration ban is suspended during a probation period of one year following the
notification of the present decision. If the Respondent commits another
infringement during the probationary period, the suspension is automatically
revoked and the registration ban executed.
*****
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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Player A, Country B / Club C, Country D
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Encl: CAS directives
Player A, Country B / Club C, Country D
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