DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 7 June 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Jon New m an (US A), member
Wouter Lam brecht (Belgium ), member
Pav el Piv ov arov (Rus s ia), member
on the claim presented by the player,
Play er A, from country A
as Claimant
against the club,
Club X, from country X
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 8 July 2017, the player from country A, Player A (hereinafter: the
Claimant), and the club from country X, Club X (hereinafter: the
Respondent), signed an employment contract valid as from the date of
signature until 30 November 2017.
2.
On the same date, the parties signed the “Appendix n.1” (hereinafter:
the appendix) to the employment contract.
3.
In accordance with art. 3.1 of the employment contract, the Respondent
undertook to pay to the Claimant “a monthly salary [of] 5,100,000 […]”.
4.
Furthermore, according to art. 1 of the appendix, the Claimant was
entitled, inter alia, to “a) for the win in Championship in home and away
matches the sum from 300,000 up to 1,200,000; b) for the draw in
Championship in away matches the sum will be paid 50% from the sum
of the player of main team […]”.
5.
Moreover, according to art. 4 of the appendix, the Claimant was entitled
to “2 (two) time in 2017 travel air flight from work place to place of
residence and back […]”.
6.
By correspondence dated 5 March 2018, the Claimant put the Respondent
in default of payment of 17,209,000 setting a time limit of 10 days in
order to remedy the default.
7.
On 4 April 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 17,209,000, corresponding to: (i) part
of his salary of August 2017 600,000); (ii) his salary of September, October
and November 2017 (15,300,000); (iii) bonuses “corresponding to two
away draws and 2 won games” (900,000); (iv) reimbursement of a flight
ticket bought in July 2017 (409,000).
8.
The Claimant further asked to be awarded 5% interest p.a. “on the
whole sum above, due from the time of the contract breach (August
2017) […]”.
9.
In particular, the Claimant argued that he had played for the team in two
away draw and two home win games, being consequently entitled to “at
least 900,000”. Moreover, the Claimant explained that, in accordance
with the appendix, he had to be reimbursed for the round trip flight
ticket he purchased.
10.
In spite of having been invited to do so, the Respondent has not replied
to the claim.
Player A, from country A / Club X, from country X
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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 4 April 2018. Consequently, the 2018 edition of the Rules
Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable
to the matter at hand (cf. art. 21 of the Procedural Rules).
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 2018), it is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension
between a player and a club.
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 2018) and considering that the present
claim was lodged on 4 April 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 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 emphasized 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 8 July 2017, the
Claimant and the Respondent signed an employment contract valid as
from the date of signature until 30 November 2017.
6.
Furthermore, the members of the Chamber observed that, on the same
date, the Claimant and the Respondent signed an appendix to the
employment contract.
7.
In continuation, the Chamber noted that, in accordance with the
employment contract and its appendix, the Respondent undertook to pay
to the Claimant a monthly salary of 5,100,000 and bonuses as follows: “a)
for the win in Championship in home and away matches the sum from
300,000 up to 1,200,000; b) for the draw in Championship in away
matches the sum will be paid 50% from the sum of the player of main
team […]”.
Player A, from country A / Club X, from country X
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8.
Furthermore, it was noted that, according to the appendix, the Claimant
was entitled to “2 (two) time in 2017 travel air flight from work place to
place of residence and back […]”.
9.
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 17,209,000, corresponding to: (i) part of his salary of
August 2017 (600,000); (ii) his salary of September, October and
November 2017 (15,300,000); (iii) bonuses “corresponding to two away
draws and 2 won games” (900,000); (iv) reimbursement of a flight ticket
bought in July 2017 (409,000).
10.
In this context, the DRC took particular note of the fact that, on 5 March
2018, the Claimant put the Respondent in default of payment of the
amount of 17,209,000, setting a 10 days’ time limit in order to remedy the
default.
11.
Consequently, the DRC 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).
12.
Subsequently, 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 DRC considered that the
Respondent renounced its right to defence and thus accepted the
allegations of the Claimant.
13.
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.
14.
Having said this, the DRC acknowledged that, in accordance with the
employment contract and its appendix, the Respondent was obliged to
pay to the Claimant the amount of 5,100,000 as monthly salary plus
bonuses as follows: “a) for the win in Championship in home and away
matches the sum from 300,000 up to 1,200,000; b) for the draw in
Championship in away matches the sum will be paid 50% from the sum
of the player of main team […]”. Furthermore, the DRC observed that,
according to the appendix, the Claimant was also entitled to “2 (two)
time in 2017 travel air flight from work place to place of residence and
back […]”.
15.
In relation to the above, the members of the Chamber observed that the
appendix does not clearly indicate the Claimant’s entitlement as bonus
for a draw in away matches. In this respect, the DRC deemed important
Player A, from country A / Club X, from country X
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to recall art. 12 par. 3 of the Procedural Rules, in accordance with which
any party claiming a right on the basis of an alleged fact shall carry the
burden of proof and deemed that the Respondent had not presented
documentation which would clarify which amount was due to be paid in
such occurrence.
16.
Taking into account the documentation presented by the Claimant in
support of his petition concerning outstanding salaries, bonuses relating
to the win in home and away matches and the flight ticket, the Chamber
concluded that the Claimant had substantiated this part of his claim
pertaining to overdue payables with sufficient documentary evidence.
17.
On account of the aforementioned considerations, the DRC established
that the Respondent failed to remit the Claimant’s remuneration in the
total amount of 16,909,000, corresponding to: (i) part of the salary of
August 2017 (600,000), as well as the salaries for September, October and
November 2017 (15,300,000); (ii) 2 bonuses for the win in home and away
matches (600,000) and (iii) a round trip flight ticket from from country X
to country A and back (409,000).
18.
In addition, the Chamber established that the Respondent had delayed a
due payment for more than 30 days without a prima facie contractual
basis.
19.
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 total amount of 16,909,000.
20.
In addition, taking into consideration the Claimant’s request and the fact
that the employment contract and the appendix lack an indication of a
clear due date for salary payment and bonuses, the members of the
Chamber decided to award the Claimant interest on the abovementioned amount as follows:
-5% p.a. on the amount of 600,000 as from 1 September 2017 until the
date of effective payment;
- 5% p.a. on the amount of 5,100,000 as from 1 October 2017 until the
date of effective payment;
- 5% p.a. on the amount of 5,100,000 as from 1 November 2017 until the
date of effective payment;
- 5% p.a. on the amount of 5,100,000 as from 1 December 2017 until the
date of effective payment;
- 5% p.a. on the amount of 300,000 as from 30 September 2017 until the
date of effective payment;
Player A, from country A / Club X, from country X
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- 5% p.a. on the amount of 300,000 as from 31 October 2017 until the
date of effective payment;
- 5% p.a. on the amount of 409,000 as from 1 August 2017 until the date
of effective payment.
21.
In continuation, taking into account the consideration under number
II./18. above, the DRC 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.
22.
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 2017, on 6
September 2017 (for two separate offences), on 6 December 2017, on 18
March 2018 the Respondent had already been found by the DRC and the
DRC Judge to have delayed a due payment for more than 30 days
without a prima facie contractual basis. In particular, the members of the
Chamber noted that, on 18 March 2018, the DRC decided that, should the
Respondent fail to pay the amount awarded to the creditor within 30
days of notification of the relevant decision, a ban from registering any
new players, either nationally or internationally, would become effective
on the Respondent for the next two entire registration periods following
the notification of said decision.
23.
The Chamber further took into account that, since the Respondent did
not comply with its obligation to pay the amount awarded to the creditor
in accordance with the aforementioned decision passed by the DRC on 18
March 2018, said ban from registering any new players, either nationally
or internationally, during two entire and consecutive registration periods
will indeed be effective as from the country X registration period starting
in July 2018.
24.
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 6th time.
25.
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.
26.
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
Player A, from country A / Club X, from country X
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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 partially accepted.
2.
The Respondent, Club X, has to pay overdue payables in the amount of
16,909,000 to the Claimant w ithin 30 day s as from the date of
notification of this decision.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, interest of 5% p.a. as follows:
-5% p.a. on the amount of 600,000 as from 1 September 2017 until the
date of effective payment;
- 5% p.a. on the amount of 5,100,000 as from 1 October 2017 until the
date of effective payment;
- 5% p.a. on the amount of 5,100,000 as from 1 November 2017 until the
date of effective payment;
- 5% p.a. on the amount of 5,100,000 as from 1 December 2017 until the
date of effective payment;
- 5% p.a. on the amount of 300,000 as from 30 September 2017 until the
date of effective payment;
- 5% p.a. on the amount of 300,000 as from 31 October 2017 until the
date of effective payment;
- 5% p.a. on the amount of 409,000 as from 1 August 2017 until the date
of effective payment.
4.
In the event that the amount and interest due to the Claimant are not
paid by the Respondent 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.
Any further claim of the Claimant is rejected.
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 of every payment received.
Player A, from country A / Club X, from country X
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7.
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
Encl. CAS directives
Player A, from country A / Club X, from country X
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