DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 4 August 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 10 August 2015, the Player of Country B, Player A (hereinafter: Claimant), and
the Club of Country D, Club C (hereinafter: Respondent) signed an employment
contract valid s from the date of signature until 9 June 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a down payment of USD 30,000 on 10 December 2015.
3.
Furthermore, the employment contract stipulates that “[t]he [Respondent] shall
provide [the Claimant] with 1 (one) return Economy Class air ticket”.
4.
By correspondence dated 16 May 2017, the Claimant put the Respondent in default
of payment of USD 30,000 setting a time limit expiring on 29 May 2017 in order to
remedy the default.
5.
On 30 May 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 USD 30,000 corresponding to the down payment due on 10 December
2015.
6.
The Claimant further asks to be awarded interest of 5% per year as from 11
December 2015 until the date of effective payment.
7.
In reply to the claim, the Respondent held that in spite of being contractually
entitled to one round-air ticket, the Claimant received additional tickets in the total
amount of USD 21,255. According to the Respondent, said amount was deducted
from the Claimant’s dues.
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 May 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 par. 2 and par. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction
Player A, Country B / Club C, Country D
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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 an 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 May 2017,
the 2016 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 s from the date of signature until
9 June 2016, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, a down payment of USD 30,000 on 10 December 2015.
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 USD
30,000 corresponding to the down payment due on 10 December 2015.
7.
In this context, the DRC judge took particular note of the fact that, on 16 May 2017,
the Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit expiring on 29 May 2017 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,
held that that in spite of being contractually entitled to one round-air ticket, the
Player A, Country B / Club C, Country D
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Claimant received additional tickets in the total amount of USD 21,255. According to
the Respondent, said amount was deducted from the Claimant’s dues.
10.
In this regard, the DRC judge wished to emphasise that the Respondent cannot make
the Claimant responsible for payments that it voluntarily made in spite of not being
contractually agreed.
11.
Therefore, the DRC judge was of the opinion the arguments raised by the
Respondent cannot be considered a valid reason for non-payment of the monies
claimed by the Claimant, in other 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.
Consequently, the DRC judge decided to reject the argumentation put forward by
the Respondent in its defence.
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
USD 30,000 corresponding to the down payment due on 10 December 2015.
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 USD 30,000.
16.
Furthermore, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD
30,000 as from 11 December 2015 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. In this context, the DRC
judge highlighted that, on 29 February 2016, the Respondent had already been
found 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
Player A, Country B / Club C, Country D
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claim, as a result of which a fine had been imposed on the Respondent by the Single
Judge of the Players’ Status Committee.
19.
Moreover, the DRC judge 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.
20.
Bearing in mind that the Respondent has replied to the claim of the Claimant as well
as the considerations under numbers II./18. and II./19. above, the DRC judge decided
to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the
Regulations. Furthermore, taking into consideration the amount due of total
amount payable as well as the aggravating circumstance of a repeated offence, the
DRC judge regarded a fine amounting to CHF 7,500 as appropriate and hence
decided to impose said fine on the Respondent.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is 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 USD 30,000, plus
interest at the rate of 5% p.a. as from 11 December 2015 until the date of effective
payment.
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 judge
of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 7,500. 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
Player A, Country B / Club C, Country D
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*****
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 DRC judge:
Marco Villiger
Chief Legal & Integrity Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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