Official Documents
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 3 July 2015,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player A, from country B
as Claimant
against the club,
Club C, from country D
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 11 May 2013, the player from country B, Player A (hereinafter: Claimant), and
the club from country D, Club C (hereinafter: Respondent) signed an employment
contract (hereinafter: the contract) valid as from 1 July 2013 until 30 June 2014.
2.
On the same date, the parties concluded a document titled “The appendix No. 2
to the contract” (hereinafter: the appendix) which governed the financial aspects
of the contract and according to which the Respondent undertook to pay to the
Claimant, inter alia, the following amounts:
a. USD 110,000 as total salary payable in 11 monthly instalments of USD
10,000 “for the term from 01.07.2013 till 30.05.2014”;
b. USD 30,000 payable on 30 December 2013.
3.
By correspondence dated 26 May 2015, the Claimant put the Respondent in
default of payment of USD 50,000, corresponding to “two unpaid salaries total of
[USD 20,000] and sign-on fee [of USD 30,000]”, setting a time limit of ten days in
order to remedy the default.
4.
On 15 May 2015, 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 50,000 corresponding to his salaries of January and June 2014
as well as “the sign-on fee” payable on 30 December 2013.
5.
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 15 May 2015. 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 2015), 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 B and a club from country D.
Player A, from country B / Club C, from country D
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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 2015), and considering that the present claim was lodged on 15 May
2015, 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 of 1 July 2013 until 30 June
2014 as well as an appendix which governed the financial aspects of the contract
and whereby the Respondent undertook to pay to the Claimant, inter alia, USD
30,000 on 30 December 2013 as well as USD 10,000 as a monthly salary “for the
term from 01.07.2013 till 30.05.2014”.
6.
Subsequently, the DRC judge noted that 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 50,000 corresponding to the
amount due on 30 December 2013, as well as his salaries of January and June
2014.
7.
In this context, the DRC judge took particular note of the fact that, on 26 May
2015, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a time limit of ten 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).
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
Player A, from country B / Club C, from country D
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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.
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 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
appendix provided by the Claimant, the Respondent was obliged to pay to him
USD 30,000 on 30 December 2013 as well as USD 10,000 as a monthly salary “for
the term from 01.07.2013 till 30.05.2014”.
12.
Taking into account the documentation presented by the Claimant in support of
his petition, the DRC judge concluded that the Claimant had only partially
substantiated his claim pertaining to overdue payables with pertinent
documentary evidence. That is, there is no contractual basis relating to the
Claimant’s claim pertaining to the salary of June 2014 as the appendix clearly
provides that the salary of the Claimant would be payable “for the term from
01.07.2013 till 30.05.2014”. Consequently, the DRC judge decided to reject this
part of the Claimant’s claim relating to his alleged salary of June 2014.
13.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the DRC judge established that the Respondent failed
to remit the Claimant’s remuneration in the total amount of USD 40,000
comprised of the amount of USD 30,000 due on 30 December 2013 and his salary
of January 2014 in the amount of USD 10,000.
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 40,000.
16.
Moreover, the DRC judge decided that any further request filed by the Claimant is
rejected.
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.
Player A, from country B / Club C, from country D
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18.
The DRC judge further established that in virtue of art. 12bis par. 4 of the
Regulations, he has competence to impose sanctions on the Respondent. Bearing
in mind that the Respondent did not reply to the claim of the Claimant and that
the Respondent has previously been found by the Dispute Resolution Chamber to
have neglected its contractual obligations towards players, 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
40,000, the DRC judge regarded a fine amounting to CHF 10,000 as appropriate
and hence decided to impose said fine on the Respondent.
19.
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, Player A, is partially accepted.
2.
The Respondent, Club C, 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
40,000.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned time limit and the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee for consideration
and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
5.
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.
6.
The Respondent is ordered to pay a fine in the amount of CHF 10,000. 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.:
Player A, from country B / Club C, from country D
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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 67 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:
Jérôme Valcke
Secretary General
Encl. CAS directives
Player A, from country B / Club C, from country D
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