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 4 August 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 8 August 2016 until 30 March 2018.
2.
On 30 March 2017, the Claimant and the Respondent signed a mutual termination
agreement.
3.
According to the mutual termination agreement, the Respondent acknowledged that
it had an obligation to pay the Claimant the amount of EUR 5,000, as follows:
- EUR 1,000 upon the signature of the termination agreement;
- EUR 2,000 on 30 April 2017;
- EUR 2,000 on 30 July 2017.
4.
Moreover, the mutual termination agreement stipulated the following:
“8. If any of the above amounts are not paid to the [Claimant’s] account on the dates
agreed the [Claimant] will be entitled to the amount of 1000 Euro (One thousand
Euros) as a penalty”
5.
By correspondence dated 7 May 2018, the Claimant put the Respondent in default of
payment for the total amount of EUR 6,000, setting a 10 days’ time limit in order to
remedy the default.
6.
On 21 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 6,000, corresponding to all the amounts mentioned in the termination
agreement (incl. the amount stipulated in clause 8 of the mutual termination
agreement), plus interest and legal fees.
7.
The Respondent sent an unsolicited correspondence to FIFA before being notified of
the claim with the following contents:
“we have already spoken to the [Claimant] and made a payment to his account that
we inclose in our email. We have agreed with the form of payment and the remaining
debt to the [Claimant] will be paid according to our agreement”.
8.
Subsequently, the Respondent was invited to formally reply to the claim, but only did
so after the expiration of the deadline granted by FIFA.
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 21 May 2018. Consequently, the Rules Governing the Procedures of the Players’
Player A, Country B / Club C, Country D
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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 21 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 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, on 4 August 2016, the Claimant
and the Respondent signed an employment contract valid as from 8 August 2016 until
30 March 2018.
6.
In this respect, the DRC judge noted that, on 30 March 2017, the Claimant and the
Respondent signed a mutual termination agreement, by means of which the
Respondent acknowledged that it had an obligation to pay the Claimant the amount
of EUR 5,000, as follows:
- EUR 1,000 upon the signature of the termination agreement;
- EUR 2,000 on 30 April 2017;
- EUR 2,000 on 30 July 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, corresponding to the total amount stipulated in the mutual
termination agreement.
8.
In this context, the DRC judge took particular note of the fact that, on 7 May 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
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).
10.
Subsequently, the DRC judge observed that the Respondent, in spite of having been
invited to do so, had, for its part, failed to present its response to the claim of the
Claimant within the relevant time limit set by FIFA, i.e. 12 July 2018. In fact, the reply
of the Respondent was only received on 30 July 2018. As a result, bearing in mind the
constant jurisprudence of the DRC applicable in this regard and in relation to art. 9
par. 3 of the Procedural Rules, the DRC judge decided not to take into account the
reply of the Respondent and established that, in accordance with the aforementioned
provision, he shall take a decision on the basis of those documents on file that were
provided prior to the deadline set by FIFA.
11.
On account of the documentation on file submitted prior to expiry of the time limit
set by FIFA, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence and that there
was no conclusive evidence demonstrating that the Claimant had in fact received the
claimed amount of EUR 5,000.
12.
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
5,000, corresponding to the amount stipulated in the mutual termination agreement.
13.
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.
14.
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 5,000.
15.
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 dates of each instalment until the date of effective payment.
16.
Moreover, the DRC judge observed that, in his claim, the Claimant requested the
payment of an additional amount of EUR 1,000, which would correspond to the
application in the matter at stake of clause 8 of the mutual termination agreement,
and which was drafted as follows:
“8. If any of the above amounts are not paid to the players account on the dates
agreed the player will be entitled to the amount of 1000 Euro (One thousand Euros)
as a penalty”
17.
In this respect, the DRC judge observed that the contents of the aforementioned
clause were clear and proportional. Moreover, the DRC judge understood that, in view
of his previous considerations, said clause was fully applicable due to the Respondent’s
default in settling its debt towards the Claimant within the agreed due dates.
Therefore, in application of the general legal principle of pacta sunt servanda, the
DRC judge agreed that Respondent is liable to pay to the Claimant the amount stated
in clause 8 of the mutual termination agreement, i.e. EUR 1,000.
Player A, Country B / Club C, Country D
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18.
In continuation, taking into account the consideration under number II. 12. 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.
19.
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 total amount due of EUR 6,000, the DRC
judge regarded a fine amounting to CHF 1,000 as appropriate and hence decided to
impose said fine on the Respondent.
20.
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.
21.
Moreover, the DRC judge decided to reject the Claimant’s claim pertaining to legal
costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s
respective longstanding jurisprudence in this regard.
III.
Decis ion 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 5,000, plus 5%
interest p.a., calculated as follows:
- 5% p.a. over the amount of EUR 1,000 as from 31 March 2017 until the date of
effective payment;
- 5% p.a. over the amount of EUR 2,000 as from 1 May 2017 until the date of effective
payment;
- 5% p.a. over the amount of EUR 2,000 as from 31 July 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.
4.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, the amount of EUR 1,000 as penalty fee.
5.
In the event that the aforementioned 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 limits and the present matter shall be submitted
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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6.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance are to be made and to notify the DRC judge
of every payment received.
7.
Any further claim lodged by the Claimant is rejected.
8.
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 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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