DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 16 August 2018,
by Jon New m an (USA) , 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 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 2019.
2.
On 7 December 2017, the Claimant and the Respondent signed a document titled
“settlement agreement”, by means of which the parties, inter alia, settled the
Claimant’s outstanding amounts corresponding to the 2017/2018 season.
3.
In accordance with the settlement agreement, the Respondent undertook to pay to
the Claimant EUR 30,166 as follows:
a.
b.
EUR 13,333 corresponding to the remuneration for November 2017 to be paid
“until 25 December 2017”;
EUR 16,833 to be paid “until 25 January 2018”.
4.
By correspondence dated 25 April 2018, the Claimant put the Respondent in default
of payment of EUR 30,166 setting a 10 days’ time limit in order to remedy the default.
5.
On 5 April 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 total
amount of EUR 30,166, corresponding to the amount established in the settlement
agreement.
6.
The Claimant further asks to be awarded interest of 5% “as from the due date of each
of the instalments”.
7.
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 5 April 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).
Player A, Country B / Club C, Country D
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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
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 5 April 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 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 10 July 2017 until 30 June 2019.
6.
The DRC judge further took note of the document titled “settlement agreement”,
dated 7 December 2017.
7.
In continuation, the Chamber noted that, in accordance with the settlement
agreement, the Claimant was entitled to receive from the Respondent, inter alia, EUR
30,166, in two instalments of EUR 13,333 and EUR 16,833 respectively.
8.
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 30,166
corresponding to the amount established in the settlement agreement.
9.
In this context, the DRC judge took particular note of the fact that, on 25 April 2018,
the Claimant put the Respondent in default of payment of the aforementioned
amount, setting a time limit expiring on 5 May 2018 in order to remedy the default.
10.
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
Player A, Country B / Club C, Country D
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a deadline of at least ten days for the debtor club to comply with its financial
obligation(s).
11.
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.
12.
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.
13.
Having said this, the DRC judge acknowledged that, in accordance with the settlement
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant “the net amount of (…) EUR 13,333, the net amount representing the
remuneration for November 2017 (…) until 25 December 2017”, as well as “the net
amount of (…) EUR 16,833 (…) until 25 January 2018”.
14.
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 with sufficient documentary evidence.
15.
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 EUR
30,166 corresponding to the two instalments envisaged in the settlement agreement.
16.
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.
17.
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 30,166.
18.
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. as follows:
a.
b.
On the amount of EUR 13,333 as from 26 December 2017 until the date of
effective payment;
On the amount of EUR 16,833 as from 26 January 2018 until the date of effective
payment.
Player A, Country B / Club C, Country D
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19.
In continuation, taking into account the consideration under number II./16. 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.
20.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. On account of the above and
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. Furthermore, taking into consideration the amount
due, the DRC judge regarded a fine amounting to CHF 5,000 as appropriate and hence
decided to impose said fine on the Respondent.
21.
In this connection, 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.
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, within 30 days as from the date
of notification of this decision, overdue payables in the amount of EUR 30,166, plus
interest at the rate of 5% p.a. as follows:
a.
b.
On the amount of EUR 13,333 as from 26 December 2017 until the date of
effective payment;
On the amount of EUR 16,833 as from 26 January 2018 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.
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 5,000. 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:
Player A, Country B / Club C, Country D
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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).
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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