DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 25 January 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Roy Verm eer (The Netherlands ), member
Tom is lav Kas alo (Croatia), member
Pav el Piv ov arov (Rus s ia), member
Daan de Jong (The 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 8 August 2016, the player of Country B, Player A (hereinafter: Claimant), and the
club of Country D, Club C (hereinafter: Respondent), concluded an employment
contract (hereinafter: the contract) valid as from the date of signature until 8 June
2017.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant the following remuneration:
a. A monthly salary of USD 8,000, “equivalent to (30000) Thirty thousand in the
currency of Country D at the end of each calendar month”;
b. A signing bonus of USD 50,000, payable “at the beginning of the first
round”.
3.
Art. 2 of section IX of the contract stated that “the Committee and/or FIFA has
jurisdiction in disputes between the club and the professional player on the terms of
the contract and its implementation”.
4.
By correspondence dated 25 July 2017, the Claimant put the Respondent in default
of payment of USD 32,000 setting a 10 days’ time limit in order to remedy the
default.
5.
On 19 July 2017, the Claimant lodged a claim against the Respondent in front of
FIFA, completed on 28 August 2017, asking that the Respondent be ordered to pay
to him overdue payables in the total amount of USD 32,000, corresponding to his
outstanding salaries for the months of February, March, April and May 2017, plus
5% interest p.a. as of “the expiry date of the employment contract”.
6.
In support of his claim, the Claimant explained that after his default notice, the
Respondent did not pay him the requested amount.
7.
In reply to the claim, the Respondent firstly contested FIFA’s competence to take a
decision in the present case. According to the club, art. 2 of section IX of the
employment contract stipulated that the Sport Arbitration Center of Country D is
competent to hear any dispute arising between the parties. What is more, the
Respondent referred to art. 7.1.3 of the Statute of the Sport Arbitration Center of
Country D, which stipulated that “the Sport Arbitration Center of Country D shall
have jurisdiction over Disputes arising from contracts including an arbitration clause
that refers any dispute to the Sport Arbitration Center of Country D”.
8.
In addition, the Respondent acknowledged having overdue payables towards the
Claimant in the total amount of 112,000 in the currency of Country D and offered a
Player A, Country B / Club C, Country D
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payment plan. In this regard, the Respondent proposed that the due amount be paid
to the player by means of “six equal monthly instalments“.
9.
With regard to the issue of FIFA’s competence, the Claimant stated that there was
no clause in the contract stipulating an obligatory procedure before the Sport
Arbitration Center of Country D.
10.
By correspondence dated 14 January 2018, the Claimant acknowledged receipt of a
payment of USD 10,000 made by the Respondent on 17 December 2017.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 19 July 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 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 2016)
the Dispute Resolution Chamber, would in principle, be 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.
In continuation, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s deciding body on the basis of art. 2 of section IX of the
employment contract invoking an alleged jurisdiction of the Sport Arbitration
Center of Country D.
4.
In this regard, the DRC noted that the Claimant rejected such position and insisted
that FIFA has competence to deal with the present matter.
5.
Taking into account the above, the Chamber emphasised that in accordance with
art. 22 lit. b) of the 2016 edition of the Regulations on the Status and Transfer of
Players it is competent to deal with a matter such as the one at hand, unless an
independent arbitration tribunal, guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs, has been established at
national level within the framework of the association and/or a collective bargaining
agreement. With regard to the standards to be imposed on an independent
Player A, Country B / Club C, Country D
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arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA
Circular no. 1010 dated 20 December 2005. In this regard, the members of the
Chamber further referred to the principles contained in the FIFA National Dispute
Resolution Chamber (NDRC) Standard Regulations, which came into force on 1
January 2008.
6.
In relation to the above, the Chamber also deemed it vital to outline that one of the
basic conditions that need to be met in order to establish that another organ than
the DRC can settle an employment-related dispute between a club and a player of
an international dimension is that the competence of the relevant arbitration
tribunal derives from a clear reference in the employment contract.
7.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
actually contained a clear and exclusive arbitration clause in favour of an NDRC in
Country D.
8.
Subsequently, the Chamber referred to the article 2 of section IX of the employment
contract, which stipulates that “the Committee and/or FIFA has jurisdiction in
disputes between the club and the professional player on the terms of the contract
and its implementation”.
9.
Taking into account the wording of the above-mentioned clause, the DRC concluded
that said clause does not exclude FIFA’s jurisdiction and noted that the employment
contract at the basis of the present dispute does not contain a clear and exclusive
arbitration clause in favour of a national dispute resolution body, since it only refers
to “the Committee” in general, and even to FIFA.
10.
On account of the above, the Chamber established that the Respondent’s objection
to the competence of FIFA to deal with the present matter has to be rejected and
that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of
the Regulations on the Status and Transfer of Players, to deal with the present
matter as to the substance. Consequently, the claim of the Claimant is admissible.
11.
Furthermore, the DRC 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 19 July 2017, the 2016
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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12.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
members of the Chamber started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation on file. However, the DRC 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.
13.
Having said this, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract valid from 8 August 2016 until 8 June 2017, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, the following remuneration:
a. A monthly salary of USD 8,000, “equivalent to (30000) Thirty thousand in the
currency of Country D at the end of each calendar month”;
b. A signing bonus of USD 50,000, payable “at the beginning of the first round”.
14.
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
32,000 corresponding to his outstanding salaries for the months of February, March,
April and May 2017.
15.
In this context, the DRC took particular note of the fact that, on 25 July 2017, the
Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a 10 days’ time limit in order to remedy the default.
16.
Consequently, the Chamber 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).
17.
Subsequently, the members of the DRC took into account that the Respondent, for
its part, acknowledged having overdue payables towards the Claimant in the total
amount of 112,000 in the currency of Country D and that it offered a payment plan.
18.
The Chamber took note of the documents submitted by the Respondent in support
of its argumentation. In this respect the DRC emphasized that according to art. 12
par. 3 of the Procedural Rules any party claiming a right on the basis of an alleged
fact shall carry the burden of proof.
19.
On account of the above, and in view of the fact that the Respondent did not submit
corroborating evidence that the difference between the amount claimed by the
Player A, Country B / Club C, Country D
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Claimant (i.e. USD 32,000) and the acknowledged amount of monies due by the
Respondent (i.e. 112,000 in the currency of Country D) was paid, the DRC considered
that the arguments raised by the Respondent cannot be considered a valid reason
for the 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.
20.
Consequently, the Chamber decided to reject the argumentation put forward by the
Respondent in its defence.
21.
On account of the aforementioned considerations, the members of the Chamber
established that the Respondent failed to remit the Claimant’s remuneration in the
total amount of USD 32,000 corresponding to the Claimant’s outstanding salaries for
the months of February, March, April and May 2017.
22.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
23.
Notwithstanding the above, the Chamber took note that the Claimant
acknowledged having received a partial payment of USD 10,000 made by the
Respondent on 17 December 2017.
24.
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 22,000.
25.
In addition, taking into account the Claimant’s request, the Chamber decided that
the Respondent must pay to the Claimant interest of 5% p.a. as of “the expiry date
of the employment contract”, i.e. 8 June 2017.
26.
In continuation, taking into account the consideration under number II./22. 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.
27.
The Dispute Resolution Chamber established that in virtue of art. 12bis par. 4 of the
Regulations it has competence to impose sanctions on the Respondent. Therefore,
bearing in mind that the Respondent duly replied to the claim of the Claimant and
in the absence of the circumstance of repeated offence, the DRC decided to impose
a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
Player A, Country B / Club C, Country D
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28.
In this respect, the members of the Chamber wished to highlight that a repeated
offence will be considered as an aggravating circumstance and lead to a more severe
penalty in accordance with art. 12bis par. 6 of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is partially accepted.
3.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s from the date
of notification of this decis ion, overdue payables in the amount of USD 22,000
plus 5% interest p.a. as of 8 June 2017 until the date of effective payment.
4.
In the event that the amount due to the Claimant is not paid by the Respondent
w ithin the s tated tim e lim it, the present matter shall be submitted, upon request,
to the FIFA Disciplinary Committee for consideration and a formal decision.
5.
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.
6.
A warning is imposed on the Respondent.
*****
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:
Player A, Country B / Club C, Country D
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Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
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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