DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 28 August 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Theo v an S eggelen (Netherlands), member
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 22 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 20 January 2016 until 30 June 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a monthly salary of USD 75,000.
3.
By correspondence dated 4 May 2017, the Claimant put the Respondent in default
of payment of USD 249,953.42 relating to his salaries as from April until June 2016
plus interest, setting a 10 days’ time limit in order to remedy the default.
4.
On 22 June 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 225,000 corresponding to his salaries for April, May and June 2016.
5.
The Claimant further asks to be awarded interest of 5% p.a. as from the day
following each respective due date and that the Respondent be ordered to pay
administrative and procedural costs.
6.
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 as Chamber
or DRC) analysed whether it was competent to deal with the matter at hand. In this
respect, it took note that the present matter was submitted to FIFA on 22 June
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 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 2016), the Dispute Resolution Chamber 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 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
2016), and considering that the present claim was lodged on 22 June 2017, the 2016
Player A, Country B / Club C, Country D
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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 Chamber 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 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 22 January
2016, the Claimant and the Respondent entered into a contract valid as from 20
January 2016 until 30 June 2016 in accordance with which the Claimant was entitled
to receive from the Respondent, inter alia, a monthly salary of USD 75,000.
6.
Furthermore, 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 amount of USD 225,000, corresponding to his salaries for April,
May and June 2016.
7.
In this context, the members of the DRC took particular note of the fact that, on 4
May 2017, the Claimant put the Respondent in default of payment of the
aforementioned amount setting a time limit of 10 days in order to remedy the
default.
8.
Consequently, the DRC 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 Chamber 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.
10.
Furthermore, as a consequence of the aforementioned consideration, the members
of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural
Rules, they shall take a decision upon the basis of the documents on file, in other
words, upon the statements and documents presented by the Claimant.
11.
Having said this, the DRC acknowledged that, in accordance with the contract
signed by and between the parties, the Respondent was obliged to pay to the
Claimant a monthly salary of USD 75,000.
Player A, Country B / Club C, Country D
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12.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of USD
225,000 in accordance with the contract concluded between the parties.
14.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
15.
Consequently, the DRC 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 225,000.
16.
In addition, 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 p.a. until the date of effective
payment as follows:
a) 5% p.a. as of 1 May 2016 on the amount of USD 75,000;
b) 5% p.a. as of 1 June 2016 on the amount of USD 75,000;
c) 5% p.a. as of 1 July 2016 on the amount of USD 75,000.
17.
In continuation, taking into account the consideration under number II./14. above,
the DRC 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 Chamber established that in virtue of art. 12bis par. 4 of the Regulations he/it
has competence to impose sanctions on the Respondent. Therefore, and bearing in
mind that the Respondent did not reply to the claim of the Claimant, the deciding
body 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, the deciding body regarded a fine amounting to CHF
amount as stipulated in sanction list as appropriate and hence decided to impose
said fine on the Respondent.
19.
In this respect, the DRC 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 Dis pute Res olution Cham ber
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 225,000
plus 5% interest p.a. until the date of effective payment as follows:
a) 5% p.a. as of 1 May 2016 on the amount of USD 75,000;
b) 5% p.a. as of 1 June 2016 on the amount of USD 75,000;
c) 5% p.a. as of 1 July 2016 on the amount of USD 75,000.
3.
In the event that the abovementioned amount plus interest is not paid 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 Dispute
Resolution Chamber of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 15,000. 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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl.
CAS directives
Player A, Country B / Club C, Country D
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