DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 3 July 2017,
by Philippe Diallo (France), DRC judge,
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 20 January 2016, the Player of Country B, Player A (hereinafter: the Claimant)
and the Club of Country D, Club C (hereinafter: the Respondent) signed an
employment contract valid as from 1 January 2016 until 31 December 2016.
2.
According to the employment contract, the Claimant was entitled, inter alia, to a
monthly remuneration in the amount of 160,000.
3.
By correspondence dated 10 February 2017, the Claimant put the Respondent in
default of payment of “EUR 8,000”, setting a 30-day deadline for the payment.
4.
On 30 March 2017, 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 EUR 8,000 corresponding to his salaries for the months of November 2016
and December 2016, plus 5% interest p.a. as from 1 January 2017.
5.
Despite being invited to do so, the Respondent failed to provide its reply to the
claim.
II.
Cons iderations 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 30 March 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
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 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 of Country B and a Club
of Country D.
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 30 March 2017,
the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
Player A, Country B / Club C, Country D
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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 from 1 January 2016 until 31
December 2016 and that, according to said contract the Claimant was entitled, inter
alia, to a monthly remuneration in the amount of 160,000.
6.
In continuation, the DRC judge duly 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 EUR 8,000, corresponding to his entire
salaries of November 2016 and December 2016.
7.
In this context, the DRC judge took particular note of the fact that, on 10 February
2017, 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, for its part,
failed to present its response to the claim of the Claimant, in spite of having been
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 already on file, in other words, upon the
statements and documents presented by the Claimant.
11.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
Player A, Country B / Club C, Country D
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pertaining to overdue payables as to the aforementioned remuneration with
sufficient documentary evidence.
12.
Notwithstanding the above, the DRC judge was eager to emphasise that, in
accordance with the well-established jurisprudence of the DRC in this respect, he
cannot grant any outstanding amounts in EUR, as the parties had agreed upon
payment of the Claimant’s remuneration in Currency of Country D.
13.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s aforementioned remuneration in the
total amount of 320,000 pertaining to his entire salaries of November 2016 and
December 2016.
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 320,000.
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 said amount as from 1
January 2017.
17.
In continuation, 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.
18.
The DRC judge 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, the DRC judge decided to
impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the
Regulations. On this basis and taking into consideration the circumstances of the
current matter and the amount in dispute, the DRC judge regarded a fine
amounting to CHF 1,000 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.
Player A, Country B / Club C, Country D
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III.
Decis ion 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, w ithin 30 day s as from the
date of notification of this decision, overdue payables in the amount of 320,000, plus
5% interest p.a. as from 1 January 2017 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.
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 1,000. The fine is to be
paid w ithin 30 day s of notification of the present decision to FIFA to the following
bank account with reference to case nr. XXX:
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 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).
Player A, Country B / Club C, Country D
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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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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