DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 12 July 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (US A), member
on the claim presented by the player,
Play er A, from country A
as Claimant
against the club,
Club B, from country B
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 10 August 2015, the player A, from country A (hereinafter: the
Claimant), and the Club B, from country B(hereinafter: the Respondent),
signed an employment contract valid as from the date of signing until 30
June 2018.
2.
On 19 July 2017, the Claimant and the Respondent signed a termination
agreement, in accordance with which the Respondent undertook to pay to
the Claimant USD 1,750,000 in 4 instalments of USD 437,500 each, falling
due, respectively, on 15 November 2017, 15 March 2018, 15 May 2018 and
15 July 2018.
3.
By correspondence dated 16 April 2018, the Claimant put the Respondent in
default of payment of USD 437,500, corresponding to the second instalment
of the termination agreement which fell due on 15 March 2018, setting a
time limit of 15 days in order to remedy the default.
4.
On 4 May 2018, completed on 28 May 2018, 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 437,500,
corresponding to the second instalment of the termination agreement.
5.
In spite of having been invited to do so, the Respondent has not replied to
the claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to:
the Chamber or DRC) analysed whether it was competent to deal with the
matter at hand. In this respect, the Chamber took note that the present
matter was submitted to FIFA on 4 May 2018. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 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 2018), the Dispute Resolution Chamber is
Player A, from country A / Club B, from country B
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competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a
player and a club.
3.
Furthermore, the Chamber 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 2018), and considering that the present
claim was lodged on 4 May 2018, the 2018 edition of said regulations
(hereinafter: Regulations) is applicable to the matter at hand as to the
substance.
4.
The competence of the Chamber and the applicable regulations having
been established, the DRC entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned
facts as well as the arguments and the documentation on file. However, the
DRC 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 members of the Chamber acknowledged that, on 10
August 2015, the Claimant and the Respondent signed an employment
contract valid as from the date of signature until 30 June 2018.
6.
Furthermore, the members of the Chamber observed that, on 19 July 2017,
the Claimant and the Respondent signed a termination agreement,
pursuant to which the Respondent undertook to pay to the Claimant USD
1,750,000 in 4 instalments of USD 437,500 each, falling due, respectively, on
15 November 2017, 15 March 2018, 15 May 2018 and 15 July 2018.
7.
In continuation, the DRC took note 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 437,500,
corresponding to the second instalment of the termination agreement.
8.
In this context, the members of the Chamber took particular note of the fact
that, on 16 April 2018, the Claimant put the Respondent in default of
payment of the aforementioned amount, setting a 15 days’ time limit in
order to remedy the default.
9.
Consequently, the Chamber 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
Player A, from country A / Club B, from country B
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default in writing and have granted a deadline of at least ten days for the
debtor club to comply with its financial obligation(s).
10.
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. In this way, the DRC considered that the Respondent
renounced its right to defence and thus accepted the allegations of the
Claimant.
11.
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.
12.
Having said this, the Chamber acknowledged that, in accordance with the
termination agreement, the Respondent was obliged to pay to the Claimant
the amount of USD 1,750,000 in 4 instalments of USD 437,500 each, falling
due, respectively, on 15 November 2017, 15 March 2018, 15 May 2018 and
15 July 2018.
13.
Taking into account the documentation presented by the Claimant in
support of his petition, the Chamber concluded that the Claimant had
substantiated his claim pertaining to overdue payables with sufficient
documentary evidence.
14.
On account of the aforementioned considerations, the DRC established that
the Respondent failed to remit the Claimant’s remuneration in the amount
of USD 437,500, corresponding to the second instalment due in accordance
with the termination agreement.
15.
In addition, the DRC established that the Respondent had delayed a due
payment for more than thirty days without a prima facie contractual basis.
16.
Consequently, the Chamber 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 USD 437,500.
17.
Furthermore, taking into account the consideration under number II./15.
above, the 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
thirty days without a prima facie contractual basis may be sanctioned in
accordance with art. 12bis par. 4 of the Regulations.
Player A, from country A / Club B, from country B
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18.
In this regard, the Chamber established that in virtue of the aforementioned
article 12bis par. 4, it has competence to impose sanctions on the
Respondent. In this context, the members of the Chamber highlighted that
on 11 September 2015 and on 26 April 2018, the Respondent had already
been found to have delayed a due payment for more than 30 days without
a prima facie contractual basis, as a result of which fines were imposed on
the Respondent by the Dispute Resolution Chamber.
19.
Having said that, 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.
In this respect, the DRC wished to highlight that a repeated offence will be
considered as an aggravating circumstance and lead to a more severe
penalty in accordance with art. 12bis par. 6 of the Regulations.
21.
Therefore, bearing in mind the 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
entire registration period 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.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club B, has to pay overdue payables in the amount of USD
437,500 to the Claimant w ithin 30 day s as from the date of notification of
this decision.
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.
Player A, from country A / Club B, from country B
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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 DRC of every payment received.
5.
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 next entire registration period
following the notification of the present decision.
*****
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).
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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, from country A / Club B, from country B
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