DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 7 July 2016,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
A, country C
represented by Mr xxxx
as Claimant
against the club,
B, country B
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 28 September 2015, the player from country C, A (hereinafter: Claimant), and the
club from country B, club B (hereinafter: Respondent) signed an employment
contract valid as from the date of signature until 28 September 2016.
2.
On 8 December 2015, the Claimant and the Respondent signed an agreement by
means of which they terminated the employment contract (hereinafter: termination
agreement).
3.
In accordance with the termination agreement, the Respondent undertook to pay to
the Claimant the amount of xxxxx (x) 2,000 within 8 days from the signing of the
termination agreement. Moreover, the termination agreement established that if
the Respondent fails to make the relevant payment, the additional amount of x
2,000 will be due until 24 December 2015.
4.
By correspondence dated 26 January 2016, the Claimant put the Respondent in
default of payment of x 4,000 setting a 10 days’ time limit in order to remedy the
default.
5.
On 9 May 2016, 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 x 4,000 corresponding to the principal amount of x 2,000 established in
the termination agreement as well as the additional amount of x 2,000 in
accordance with the termination agreement.
6.
According to the Claimant, the amounts of x 2,000 “matured” respectively on 17
December 2015 and 25 December 2015.
7.
The Claimant further asks to be awarded interest of 5% p.a. as of the respective due
dates and that the Respondent be ordered to pay legal and procedural costs.
8.
In reply to the claim, the Respondent stated that it does not dispute the allegations
of the Claimant, but held that it is in large financial difficulties and thus, requested
to make the payment in four monthly instalments of x 1,000.
9.
The Claimant rejected the proposal of the Respondent and insisted on his claim.
Player A, country C/ Club B, country B
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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 9 May 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 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
2016) 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 C and a club from country B.
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 2016), and considering that the present claim was lodged on 9 May 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 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 for the period between 28
September 2015 and 28 September 2016 and, subsequently, on 8 December 2015,
the Claimant and the Respondent signed a termination agreement, in accordance
with which the Claimant was entitled to receive from the Respondent the amount of
x 2,000 within 8 days from its signature. In addition, the DRC judge took note that,
in accordance with the termination agreement, if the Respondent fails to make the
payment of x 2,000 within the agreed deadline, an additional amount of x 2,000
would be due until 24 December 2015.
Player A, country C/ Club B, country B
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6.
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 x
4,000 corresponding to the amounts established in the termination agreement.
7.
In this context, the DRC judge took particular note of the fact that, on 26 January
2016, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a 10 days’ time limit 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 accepted the
allegations of the Claimant. However, it held being in large financial difficulties and
thus, it requested to make the payment of the amount due in 4 instalments of x
1,000 each.
10.
Finally, the DRC judge acknowledged that the Claimant rejected the Respondent’s
proposal and insisted on his claim.
11.
In this regard, the DRC judge considered that the argument related to financial
difficulties raised by the Respondent cannot be considered a valid reason for nonpayment of the monies claimed by the Claimant, in order words, the reasons
brought forward by the Respondent in its defence do not exempt the Respondent
from its obligation to fulfil its contractual obligations towards the Claimant.
12.
Moreover, the DRC judge emphasised that the Claimant expressly rejected the offer
of the Respondent to pay the amount in instalments.
13.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of x
4,000.
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 x 4,000.
Player A, country C/ Club B, country B
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16.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payment(s), as of the day following the day on which the relevant payment(s) fell
due, until the date of effective payment.
17.
Furthermore, the DRC judge decided to reject the Claimant’s claim for legal expenses
and procedural compensation in accordance with art. 18 par. 4 of the Procedural
Rules and the respective longstanding jurisprudence of the Dispute Resolution
Chamber in this regard.
18.
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.
19.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. Therefore, bearing in mind
that the Respondent duly replied to the claim of the Claimant and in the absence of
the circumstance of repeated offence, the DRC judge 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 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, 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 x 4,000, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of x 2,000 as from 17 December 2015;
b. 5% p.a. on the amount of x 2,000 as from 25 December 2015.
3.
In the event that the amount due to the Claimant, plus interest, 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 A, country C/ Club B, country B
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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.
A warning is imposed on the Respondent.
*****
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 DRC judge:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country C/ Club B, country B
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