DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 29 July 2016,
in the following composition:
Geoff Thompson (England), Chairman
Santiago Nebot (Spain), member
John Bramhall (England), member
Guillermo Saltos (Ecuador), member
Wouter Lambrecht (Belgium), member
on the claim presented by the player,
A, country N
represented by Ms xxxx
as Claimant
against the club,
B, country T
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 5 January 2012, the player form country N, A (hereinafter: player or Claimant), and
the T club from country T, club B (hereinafter: club or Respondent), signed an
employment contract valid as from 5 January 2012 until 31 May 2016.
2.
According to the employment contract, the Claimant was entitled to receive from the
Respondent, inter alia, the amount of EUR 600,000 for the 2015-16 season, payable as
follows:
a. EUR 250,000 on 22 August 2015;
b. EUR 100,000 on 22 November 2015;
c. EUR 125,000 on 22 February 2016;
d. EUR 125,000 on 22 May 2016.
3.
By correspondence dated 23 March 2016, sent to the Respondent on 25 March 2016,
the Claimant put the club in default of payment of the amount of EUR 75,000 setting
a 10 days’ time limit in order to remedy default.
4.
On 14 April 2016, the Claimant lodged a claim against the Respondent before FIFA
asking to be awarded payment of outstanding receivables in the total amount of EUR
75,000 as well as 5% interest p.a. as of 22 February 2016.
5.
According to the Claimant, the Respondent only paid EUR 50,000 out of the EUR
125,000 instalment that fell due on 22 February 2016 and that, thus, the amount of
EUR 75,000 has remained unpaid.
6.
In spite of having been invited to do so, the club has not responded to the claim of
the Claimant.
II.
Considerations of the Dispute Resolution Chamber
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 14 April 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).
Player B, country N / Club B, country T
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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 from country N and a club from country T.
3.
In continuation, 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 14 April 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 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 5 January 2012, the Claimant and
the Respondent signed an employment contract, which was valid as from the date of
signature until 31 May 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 75,000
in connection with the instalment of EUR 125,000 that fell due on 22 February 2016 in
accordance with the employment contract. According to the Claimant, the
Respondent had only paid him the amount of EUR 50,000 in relation to said
instalment and that, therefore, the amount of EUR 75,000 remains outstanding.
7.
In this context, the DRC took particular note of the fact that with his correspondence
dated 23 March 2016, sent to the Respondent on 25 March 2016, the Claimant put the
club in default of payment of the amount of EUR 75,000 setting a 10 days’ time limit
to remedy default.
8.
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).
Player B, country N / Club B, country T
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9.
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. The Chamber considered that, in this way, the Respondent renounced its right to
defence and 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 employment
contract provided by the Claimant, the Respondent was obliged to pay to the
Claimant the amount of EUR 125,000 on 22 February 2016.
12.
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.
13.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
75,000 in relation with the instalment that fell due on 22 February 2016.
14.
In addition, the DRC established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
15.
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 75,000.
16.
In addition, taking into consideration the Claimant’s request as well as the Chamber’s
constant jurisprudence, the Chamber decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amount as of the day following the day on which
it fell due.
17.
In continuation, taking into account the consideration under number II./14. above, the
Dispute Resolution 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.
18.
The DRC established that in virtue of the aforementioned article, it has competence to
impose sanctions on the Respondent. In this context, the DRC highlighted that, on 17
April 2015, the Respondent had already been found by the Single Judge of the
Players’ Status Committee to have delayed a due payment for more than 30 days
without a prima facie contractual basis and without the Respondent having
Player B, country N / Club B, country T
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responded to the relevant claim, as a result of which a fine had been imposed on the
Respondent. The Chamber further took into account that, on 4 February 2016, the
Respondent had been found by the DRC, for the second time, to have delayed a due
payment for more than 30 days without a prima facie contractual basis without
having responded to the claim, as a result of which a ban from registering any new
players for 1 registration period, effective in the event of non-payment within the
time limit set, was imposed on the Respondent.
19.
Consequently, 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 third time.
20.
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.
21.
Moreover, the members of the Chamber wished to underline and took into account
that the Respondent has been found by the Dispute Resolution Chamber as well as
the DRC judge responsible for not complying with its financial obligations towards
players on various other occasions in the recent past.
22.
Therefore, bearing in mind the considerations under numbers II./18. to II./21. above,
the DRC decided that in the event that the Respondent does not pay the amount due
to the Claimant within 30 days following the notification of the present decision, a
ban from registering any new players, either nationally or internationally, for the next
two entire registration periods following the notification of the present decision shall
become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) of the
Regulations.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is partially 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 EUR 75,000 plus 5%
interest p.a. as from 23 February 2016 until the date of effective payment.
3.
In the event that the amount plus interest 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 B, country N / Club B, country T
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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.
Any further claim lodged by the Claimant is rejected.
6.
In the event that the amount due to the Claimant is not paid by the Respondent
within 30 days as from the date of notification of this decision, the Respondent shall
be banned from registering any new players, either nationally or internationally, for
the two next entire and consecutive registration periods following the notification of
the present decision.
*****
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 Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player B, country N / Club B, country T
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