DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 July 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
Mario Gallavotti (Italy), member
Mohamed Al Saikhan (Saudi Arabia), member
on the claim presented by the player,
A, country P
represented by Mr xxxx
as Claimant
against the club,
B, country C
represented by Mr xxxxx
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 22 July 2013, the player from P, A (hereinafter: the Claimant), and the club from C,
B (hereinafter: the Respondent), signed an employment contract valid as from the
date of signature until 30 May 2014.
2.
On the same date, the Claimant and the Respondent signed a document titled
“Supplementary Agreement”, which contains the financial remuneration that the
Claimant was entitled to receive from the Respondent.
3.
On 17 April 2014, the Claimant and the Respondent signed an agreement titled
“Amending Agreement” (hereinafter: the settlement agreement) by means of which
the club had to pay to the player the amount of EUR 37,100, payable as follows:
i. EUR 4,500 until 5 May 2014;
ii. EUR 4,500 until 5 June 2014;
iii. EUR 4,500 until 5 July 2014;
iv. EUR 4,500 until 5 August 2014;
v. EUR 4,500 until 5 September 2014;
vi. EUR 4,600 until 5 October 2014;
vii. EUR 10,000 until 30 December 2014.
4.
The settlement agreement further established that, except for the final instalment
identified with number vii. in the amount of EUR 10,000 due on 30 December 2014,
the Respondent had a 10 day grace period to pay each instalment.
5.
Moreover, according to the settlement agreement, should each and every of the
instalments identified with numbers i. to vi. above be complied with and effected by
the Respondent before the expiry of the respective grace periods, the Claimant would
waive his right to receive the above final instalment identified with number vii.
6.
On 19 September 2014, the Claimant sent an e-mail message to the Respondent
informing the latter that until then the Respondent had not paid the July, August,
and September instalments in a timely manner, inviting the Respondent to “make the
payment maximum” until 23 September 2014.
7.
On 26 April 2016, the Claimant put the Respondent in default of payment of EUR
10,000, setting a 10 days’ time limit in order to remedy the default.
8.
On 22 April 2016 and subsequently completed on 11 May 2016, the Claimant lodged a
claim against the Respondent before FIFA, asking that the Respondent be ordered to
pay to him overdue payables in the amount of EUR 10,000, corresponding to the last
instalment established in the settlement agreement due on 30 December 2014.
9.
The Claimant further asks to be awarded 5% interest p.a. as of the relevant due date.
Player A, country P / Club B, country C
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10.
In his claim, the Claimant argued that there were constant delays regarding the
payment of the instalments established in the settlement agreement. In this respect,
the Claimant referred to his e-mail correspondence with the Respondent dated 19
September 2014 (cf. point I./6. above).
11.
The Respondent asked for an extension of the time limit within which to reply to the
claim after the notification of the closure of the investigation in the present matter.
Subsequently, and after being reminded by FIFA about the closure of the
investigation-phase in the matter at hand, the Respondent submitted its position to
the claim lodged against it.
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 22 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).
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 P and an club from C.
3.
Furthermore, the DRC analyzed 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 22 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 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 the Claimant and the Respondent
signed a settlement agreement, in accordance with which, inter alia, the Claimant
Player A, country P / Club B, country C
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was entitled to receive from the Respondent the amount of EUR 37,100, in various
instalments payable as follows:
i. EUR 4,500 until 5 May 2014;
ii. EUR 4,500 until 5 June 2014;
iii. EUR 4,500 until 5 July 2014;
iv. EUR 4,500 until 5 August 2014;
v. EUR 4,500 until 5 September 2014;
vi. EUR 4,600 until 5 October 2014;
vii. EUR 10,000 until 30 December 2014.
6.
Furthermore, the Chamber duly noted that except for the last instalment of EUR
10,000, which fell due on 30 December 2014, a contractual 10 day grace period was
applicable to the instalments.
7.
The Chamber observed that in accordance with the settlement agreement, the player
agreed to waive his right to receive the last instalment of EUR 10,000, only in case
each and every of the previous instalments were paid by the Respondent before
expiry of the respective grace period.
8.
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 10,000,
corresponding to the last instalment of EUR 10,000, due on 30 December 2014 in
accordance with the settlement agreement.
9.
The DRC took note that the Claimant argued that the Respondent was consistently
late with the payment of the instalments established in the settlement agreement. In
this respect, the Chamber took note of the Claimant’s e-mail message dated 29
September 2014 addressed to the Respondent in which the Claimant notified the
Respondent that the instalments of July, August, and September 2014 were not paid
on time, asking the latter to proceed with a payment until 23 September 2014.
10.
In this context, the DRC took particular note of the fact that, on 26 April 2016, the
Claimant put the Respondent in default of payment of the instalment amounting to
EUR 10,000, setting a 10 days’ time limit in order for the Respondent 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 Chamber observed that the reply of the Respondent was received
after notification of the closure of the investigation of the matter at hand. As a result,
Player A, country P / Club B, country C
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in line with art. 9 par. 4 of the Procedural Rules as well as the DRC’s constant
jurisprudence in this regard, the DRC decided not to take into account the reply of
the Respondent and established that, in accordance with art. 9 par. 3 of the
Procedural Rules, it shall take a decision upon the basis of the documents on file that
were provided prior to the closure of the investigation-phase, in casu, upon the
statements and documents presented by the Claimant.
13.
Having said this, the Chamber acknowledged that in accordance with the settlement
agreement, the Respondent was obliged to pay to the Claimant the amount of EUR
37,100 in various instalments, the last one of which in the amount of EUR 10,000 fell
due on 30 December 2014.
14.
Moreover, the Chamber highlighted that the Claimant had agreed to waive his right
to receive this last instalment of EUR 10,000 due on 30 December 2014, only if each
and every of the previous instalments were paid in a timely manner, i.e. prior to the
respective 10 day grace period.
15.
In this respect, the Chamber took into account that according to the Claimant, the
Respondent failed to pay various previous instalments, i.e. those identified with
numbers iii., iv., and v. above, in a timely manner. In addition, the Chamber noted
that the Claimant had presented the e-mail correspondence of 19 September 2014 in
support of his allegation.
16.
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.
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 EUR
10,000, corresponding to the last instalment stipulated in the settlement agreement
signed between the parties, which fell due on 30 December 2014.
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 EUR 10,000.
20.
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 10,000 as from 31
December 2014 until the date of effective payment.
Player A, country P / Club B, country C
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21.
In continuation, taking into account the consideration under point 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 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
24 July 2015, the Respondent had already been found by the DRC judge to have
delayed a due payment for more than 30 days without a prima facie contractual basis
and without the Respondent having 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 14 June 2016, the Respondent had been found by the DRC judge, 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 more severe fine was imposed on the Respondent.
23.
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.
24.
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.
25.
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.
26.
Therefore, bearing in mind the considerations under numbers II./23. to II./25. above,
the DRC decided that in the event that the Respondent does not pay the amount due
to the Claimant within the 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 accepted.
2.
The Respondent, B, has to pay to the Claimant overdue payables in the amount of
EUR 10,000, plus interest at the rate of 5% p.a. as from 31 December 2014 until the
date of effective payment.
Player A, country P / Club B, country C
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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.
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 DRC of every
payment received.
5.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the Respondent shall be banned from registering any
new players, either nationally or internationally, for the next two entire 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 A, country P / Club B, country C
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