DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 30 September 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Jon Newman (USA), member
Mario Gallavotti (Italy), member
Taku Nomiya (Japan), member
on the claim presented by the player,
A, country F,
as Claimant
against the club,
B, country T
as Respondent
regarding an employment-related dispute
between the parties in connection with overdue payables
I.
Facts of the case
1.
On 14 July 2014, the player from F, A (hereinafter: Claimant), and the club from T, B
(hereinafter: Respondent), signed an employment contract valid as from 17 July 2014
until 31 May 2015.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, a monthly salary of EUR 48,000 during 10 months as from
September 2014 until June 2015.
3.
By correspondence dated 16 June 2016, the Claimant put the Respondent in default
of payment of his monthly salary for April, May, and June 2015 totalling the amount
of EUR 144,000, setting a time limit expiring on 30 June 2016 in order to remedy the
default.
4.
On 22 June 2016, and completed on 22 July 2016, the Claimant lodged a claim against
the Respondent in front of FIFA asking that the club be ordered to pay to him
overdue payables in the amount of EUR 144,000 corresponding to 3 salaries, i.e. as
from April 2015 until June 2015.
5.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 2016. Consequently,
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to
the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and
confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b of
the Regulations on the Status and Transfer of Players (edition 2016), it is competent
to deal with the matter at stake, which concerns an employment-related dispute with
an international dimension between a player from F and a club from T.
3.
Furthermore, the DRC 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 22 June 2016, the 2016
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
Player A, country F / Club B, country T
Page 2 of 5
4.
The competence of the DRC and the applicable regulations having been established,
the DRC entered into the substance of the matter. In this respect, the DRC started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber 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 the Claimant and the Respondent
signed an employment contract valid as from 17 July 2014 until 31 May 2015, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, a monthly salary of EUR 48,000 during 10 months as from September 2014
until June 2015.
6.
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
144,000 corresponding to his salaries for April, May, and June 2015.
7.
In this context, the DRC took particular note of the fact that, on 16 June 2016, the
Claimant put the Respondent in default of payment of the aforementioned amount,
setting a time limit expiring on 30 June 2016 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 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.
10.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
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.
11.
Having said this, the DRC acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the
Claimant the amount of EUR 48,000 per month as from September 2014 until and
including June 2015.
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.
Player A, country F / Club B, country T
Page 3 of 5
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 EUR
144,000 corresponding to the Claimant’s salary for April, May, and June 2015.
14.
In addition, the Chamber 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 EUR 144,000.
16.
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.
17.
The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent did not reply to the claim of the Claimant and that the Respondent has
previously been found by the Dispute Resolution Chamber to have neglected its
contractual obligations towards players on multiple occasions in the recent past, the
DRC decided to impose a fine on the Respondent in accordance with art. 12bis par. 4
lit. c) of the Regulations. On this basis and taking into consideration the amount due
of EUR 144,000, the DRC regarded a fine amounting to CHF 30,000 as appropriate and
hence decided to impose said fine on the Respondent.
18.
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.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, B, has to pay to the Claimant overdue payables in the amount of EUR
144,000 within 30 days as from the date of notification of this decision.
3.
In the event that the 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
said time limit and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
Player A, country F / Club B, country T
Page 4 of 5
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 of every
payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 30,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case nr
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 motivated decision (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 Dispute Resolution Chamber:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Player A, country F / Club B, country T
Page 5 of 5