DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 6 June 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (USA), 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 16 February 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 16 February 2015 until 16 December 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a monthly salary of USD 204,500 for a “total of 22 months”, due on the
“5th day of each month”.
3.
By correspondence dated 16 October 2018, the Claimant put the Respondent in
default of payment of USD 204,500, setting a 10 days’ time limit in order to remedy
the default.
4.
On 5 November 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 204,500 corresponding to his monthly salary of December 2016.
5.
The Claimant further asked to be awarded interest of 5% p.a. as from “December
2016”.
6.
In reply to the claim, the Respondent maintained that it remitted the last salary due
for 1 December 2016 until 16 December 2016, which it considered to be of USD
105,548, to the alleged Agent of Country D of the Claimant, since the latter left
Country D in November 2016 after the end of the League E. The Respondent
suggested to resolve the matter amicably.
7.
The Claimant subsequently stated that no amicable settlement was found and
denied having received payments in this regard or having authorized a third party to
receive money on his behalf.
8.
Despite being invited to do so, the Respondent has not submitted further comments
regarding the present matter.
Player A, Country B / Club C, Country D
Page 2 of 7
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 5 November
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 members of the Chamber referred to art. 3 par. 1 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 June 2018), the Dispute Resolution Chamber 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 Chamber 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
June 2018), and considering that the present claim was lodged on 5 November 2018,
the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and documentation on file. However, the DRC 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 Chamber acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 16 February 2015 until 16 December
2016, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, a monthly salary of USD 204,500 during 22 months.
6.
In this regard, the Chamber established that, since the monthly salary was payable
on the 5th day of each month during 22 months and the contract was valid as from
15 February 2015 until 16 December 2016, the final monthly payment of USD
204,500 fell due on 5 December 2016.
7.
Furthermore, the DRC took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue payables
Player A, Country B / Club C, Country D
Page 3 of 7
towards him in the amount of USD 204,500, corresponding to the salary of the
month of December 2016.
8.
In this context, the members of the DRC took particular note of the fact that, on 16
October 2018, the Claimant put the Respondent in default of payment of the
aforementioned amount setting a time limit of 10 days in order to remedy the
default.
9.
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).
10.
Subsequently, the members of the Chamber took into account that the Respondent,
for its part, held that it remitted a payment of USD 105,548, allegedly corresponding
to the Claimant’s last salary for the period of 1 December 2016 until 16 December
2016, to the alleged agent of the Claimant, since the Claimant had already left
Country D.
11.
The Claimant, for his part, denied having received such payment and that he had
authorized a third party to receive payments on his behalf.
12.
Having established the above, the DRC took into account that the Respondent had
failed to corroborate its position with documentary evidence in accordance with art.
12 par. 3 of the Procedural Rules and concluded that it thus was not able to prove
that the monies claimed, or parts of it, were remitted to the Claimant.
13.
Consequently, the DRC decided to reject the argumentation put forward by the
Respondent in its defence.
14.
On account of the aforementioned considerations, the Chamber established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of USD
204,500 corresponding to the Claimant’s salary of December 2016.
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 members of the Chamber 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 204,500.
Player A, Country B / Club C, Country D
Page 4 of 7
17.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD
204,500 as from 6 December 2016 until the date of effective payment.
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
facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
19.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, and in the absence
of the circumstance of repeated offence, the Chamber decided to impose a warning
on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
20.
In this respect, the DRC wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to a more severe penalty in
accordance with art. 12bis par. 6 of the Regulations.
21.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
22.
In this regard, the Chamber pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
23.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective
on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
24.
Finally, the Chamber recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due amounts, in
accordance with art. 24bis par. 3 of the Regulations.
Player A, Country B / Club C, Country D
Page 5 of 7
III.
Decis ion of the DRC
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of USD 204,500 as
overdue payables plus interest at the rate of 5% p.a. as from 6 December 2016 until
the date of effective payment.
3.
A warning is imposed on the Respondent.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amount mentioned under point 2 above.
5.
The Respondent shall provide evidence of payment of the due amount in accordance
with point 2 above to FIFA to the e-mail address [email protected], duly translated
into one of the official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount plus interest due in accordance with point 2 above is
not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
7.
The ban mentioned in point 6 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
8.
In the event that the aforementioned sum plus interest is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
Player A, Country B / Club C, Country D
Page 6 of 7
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:
Emilio García Silvero
Chief Legal Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
Page 7 of 7