DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 26 July 2018,
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 5 July 2017, 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 the date of signature until 30 June 2018.
2.
On 13 November 2017, the Claimant and the Respondent signed a mutual termination
agreement.
3.
According to articles 3 and 4 of the mutual termination agreement, the Respondent
acknowledged that it had an obligation to pay the Claimant the amount of EUR 3,500,
“on behalf of all earnings (monthly salary, contractual rate and bonuses for achieved
sporting results)”, to be paid “upon inflows of funds to the [Respondent], but no later
than December 20th 2017”.
4.
By correspondence dated 12 April 2018, the Claimant put the Respondent in default of
payment for the total amount of EUR 3,500, setting a 10 days’ time limit in order to
remedy the default.
5.
On 8 May 2018, and completed on 17 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 EUR 3,500, corresponding to the amount in accordance with
the termination agreement, plus 5% interest p.a. as from the due date for payment.
6.
In spite of having been invited to do so, the Respondent has not replied 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 8
May 2018. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: the
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 2018) 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 2018), and
considering that the present claim was lodged on 8 May 2018, the 2018 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 the date of signature until 30 June 2018.
6.
In this respect, the DRC judge noted that, on 13 November 2017, the Claimant and the
Respondent signed a mutual termination agreement and that, according to articles 3 and
4 of the mutual termination agreement, the Respondent acknowledged that it had an
obligation to pay the Claimant the amount of EUR 3,500, “on behalf of all earnings
(monthly salary, contractual rate and bonuses for achieved sporting results)”, to be paid
“upon inflows of funds to the [Respondent], but no later than December 20th 2017”.
7.
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 3,500, corresponding to the amount stipulated
in the mutual termination agreement.
8.
In this context, the DRC judge took particular note of the fact that, on 12 April 2018, 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.
9.
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).
10.
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.
11.
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.
12.
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
pertaining to overdue payables as to the aforementioned remuneration with sufficient
documentary evidence.
Player A, Country B / Club C, Country D
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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 EUR 3,500, corresponding to the amount stipulated in the mutual termination
agreement.
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 EUR 3,500.
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 the day following the
respective due date until the date of effective payment.
17.
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.
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. Taking into
consideration the amount due of EUR 3,500, 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.
III.
Decision 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 EUR 3,500, plus interest
at the rate of 5% p.a., calculated as from 21 December 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.
Player A, Country B / Club C, Country D
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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 judge of
every payment received.
5.
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 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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