DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 12 August 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (US A), 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 10 August 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 31 May 2019.
2. On 25 June 2018, the Claimant and the Respondent signed an agreement by means of
which the employment contract was terminated by mutual consent of the parties
(hereinafter: the termination agreement).
3. In accordance with the termination agreement, the Respondent undertook to pay to
the Claimant the total amount of EUR 280,000 “in accordance with the below payment
plan” as follows:
a. EUR 40,000 (“already paid”) on 25 June 2018;
b. EUR 5,000 on 26 June 2018;
c. EUR 82,500 on 31 July 2018;
d. EUR 70,000 on 31 August 2018;
e. EUR 82,500 on 30 September 2018.
4. Clause 4 of the termination agreement (hereinafter: the acceleration clause) stipulates
that “in case of any delay on any of the above instalments in full or in part for 30 days
following its due date, all the remaining instalment(s) shall be accelerated and become
due and payable as of the date of the default automatically without the need of any
notice notification and/or court verdict”.
5. On 13 March 2019, the Claimant put the Respondent in default of payment of EUR
240,000, corresponding to the last 4 instalments due under the termination agreement,
setting a 10 days’ time limit in order to remedy the default.
6. On 2 April 2019, 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 240,000 corresponding to the last 4 instalments due under the termination
agreement.
7. The Claimant further asked to be awarded interest of 5% p.a. “as from the due date
which is 26 July 2018”. In this regard, the Claimant stated that “for all dues, the
starting date of default interest should be accepted as 26.07.2018 because of unpaid
instalment on 26.06.2018”.
8. In spite of having been invited to do so, the Respondent has not replied to the claim.
Player A, Country B / Club C, Country D
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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 2 April 2019.
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).
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 2019), 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
2019), and considering that the present claim was lodged on 2 April 2019, the June
2018 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 DRC acknowledged that following the conclusion of an
employment contract on 10 August 2017, valid as from the date of signature until 31
May 2019, on 25 June 2018 the Claimant and the Respondent signed a termination
agreement by means of which the Respondent undertook to pay to the Claimant a
total amount of EUR 280,000 as follows:
a. EUR 40,000 (“already paid”) on 25 June 2018;
b. EUR 5,000 on 26 June 2018;
c. EUR 82,500 on 31 July 2018;
d. EUR 70,000 on 31 August 2018;
e. EUR 82,500 on 30 September 2018.
6.
In addition, the DRC observed that Clause 4 of the termination agreement stipulates
that “in case of any delay on any of the above instalments in full or in part for 30
days following its due date, all the remaining instalment(s) shall be accelerated and
Player A, Country B / Club C, Country D
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become due and payable as of the date of the default automatically without the
need of any notice notification and/or court verdict”.
7.
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 total amount of EUR 240,000 corresponding to the last four
instalments due under the termination agreement.
8.
In this context, the members of the DRC took particular note of the fact that, on 13
March 2019, the Claimant put the Respondent in default of payment of the amount
of EUR 240,000 setting a time limit of 10 days in order to remedy the default.
9.
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).
10.
Subsequently, the DRC 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.
11.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it 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.
12.
In this respect, the DRC recalled that, in accordance with the termination agreement
provided by the Claimant, the Respondent was obliged to pay to the Claimant the
amount of EUR 280,000 in 5 instalments with due dates between 25 June 2018 and
30 September 2018.
13.
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.
14.
On account of the aforementioned considerations, the Chamber established that the
Respondent failed to remit to the Claimant the total amount of EUR 240,000
corresponding to last four instalments of the termination agreement.
15.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
Player A, Country B / Club C, Country D
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16.
Consequently, the members of the Chamber 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 240,000.
17.
In addition, taking into consideration the Claimant’s request as well as the
acceleration clause provided for in clause 4 of the termination agreement, the
members of the Chamber decided to award the Claimant 5% interest p.a. on the
amount of EUR 240,000 as from 26 July 2018 until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./15. above,
the Chamber 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 established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, 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.
20.
In this connection, 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.
21.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
22.
In this regard, the DRC pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
23.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective
on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
Player A, Country B / Club C, Country D
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24.
Finally, the DRC recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance
with art. 24bis par. 3 of the Regulations.
****
III.
Decis ion of the Dispute 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 the amount of EUR 240,000 as
overdue payables, plus 5% interest p.a. as from 26 July 2018 until the date of
effective payment.
3.
A warning is imposed on the Respondent.
4.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the postal address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point III./2. above.
5.
The Respondent shall provide evidence of payment of the due amount in accordance
with point III./2. above to FIFA to the e-mail address [email protected], duly translated
into one of the official FIFA languages (English, French, German, Spanish).
6.
In the event that the amount plus interest due in accordance with point III./2. above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
Player A, Country B / Club C, Country D
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7.
The ban mentioned in point III./6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
8.
In the event that the aforementioned sum plus interest is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall
be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
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
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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