DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 13 September 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
A, country B
represented by Mr xxxx
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 16 July 2015, the player from country B, A (hereinafter: Claimant) and the club
from country T, club B (hereinafter: Respondent) signed an employment contract
valid as from 16 July 2015 until 31 May 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a fix remuneration of EUR 100,000 in 10 equal monthly instalments of
EUR 10,000 as from 31 August 2015 until 31 May 2016.
3.
In addition, the Respondent undertook to pay the Claimant an “appearance fee” of
EUR 500 for each appearance of the player in league matches, 75% of which was
payable if the player entered the match as a substitute and 50% if the player was
on the match list but did not play. According to the employment contract, the
appearance fee was payable at the end of the month after every four official
matches.
4.
By correspondence dated 1 July 2016, the Claimant put the Respondent in default of
payment of the amount of EUR 51,375 setting a time limit expiring on 11 July 2016
in order to remedy the default.
5.
On 12 July 2016, and completed on 18 July 2016, 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 51,375 corresponding to 4
monthly salaries, i.e. February to May 2016, totalling EUR 40,000 as well as the
amount of EUR 11,375 relating to appearance fees. The appearance fees were
specified as follows:
a. EUR 10,000 for 20 matches as a starter (EUR 500 per match);
b. EUR 375 for 1 match as a substitute (EUR 375 per match);
c. EUR 1,000 for 4 matches as part of the 18 players list (EUR 250 per match).
6.
The Claimant further asks to be awarded 5% interest on the amount of EUR 51,375
on the basis of the relevant due dates, which request was specified as follows:
a.
b.
c.
5% on EUR 2,000 as of 1 October 2015 (4 matches between 15 August 2015
and 12 September 2015);
5% on EUR 2,000 as of 1 November 2015 (4 matches between 18 September
2015 and 17 October 2015);
5% on EUR 11,875 (salary + appearance fees) as from 1 March 2016 (4 matches
between 24 October 2015 and 7 February 2016);
Player A, country B / Club B, country T
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d.
e.
f.
5% on EUR 11,000 (salary + appearance fees) as from 1 April 2016 (4 matches
between 13 February 2016 and 5 March 2016);
5% on EUR 12,000 (salary + appearance fees) as from 1 May 2016 (4 matches
between 13 March 2016 and 9 April 2016);
5% on EUR 12,500 (salary + appearance fees) as from 1 June 2016 (5 matches
between 14 April 2016 and 14 May 2016).
7.
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 12 July 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 and par. 2 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 country B and a
club from country 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 on 12 July 2016, the 2016
edition of said regulations (hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
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.
Player A, country B / Club B, country T
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5.
Having said this, the DRC acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 16 July 2015 until 31 May 2016, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, 10 monthly instalments of EUR 10,000 each as from 31 August 2015 until
31 May 2016 as well as “appearance fees”.
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
51,375 corresponding to four monthly salaries totalling EUR 40,000 as well as
appearance fees in the amount of EUR 11,375.
7.
In this context, the DRC took particular note of the fact that, on 1 July 2016, the
Claimant put the Respondent in default of payment of the aforementioned amount,
setting a time limit expiring on 11 July 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 a monthly EUR 10,000 as from 31 August 2015 until 31 May 2016 as well as
“appearance fees”, the exact amount of which was established in accordance with
the player’s participation in league matches.
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 B / Club B, country T
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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
51,375 corresponding to four monthly salaries, as from February until May 2016,
totalling EUR 40,000 as well as appearance fees in the amount of EUR 11,375.
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 51,375.
16.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payment(s), as of the day following the day on which the relevant payment(s) fell
due, until the date of effective payment.
17.
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.
18.
The DRC established that in virtue of the aforementioned article, it has competence
to impose sanctions on the Respondent. In this context, the DRC highlighted that,
on 18 November 2015, the Respondent had already been found by the DRC judge to
have delayed a due payment for more than 30 days without a prima facie
contractual basis and without the Respondent having responded to the relevant
claim, as a result of which a fine had been imposed on the Respondent. The
Chamber further took into account that, on 26 November 2015, the Respondent had
been found by the DRC judge, for the second time, to have delayed a due payment
for more than 30 days without a prima facie contractual basis without having
responded to the claim, as a result of which a more severe fine was imposed on the
Respondent.
19.
Consequently, the Chamber established that, in the present matter, the Respondent
is found to have delayed a due payment for more than 30 days without a prima
facie contractual basis for the third time.
20.
Along these lines, the DRC referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating
circumstance and lead to more severe penalty.
Player A, country B / Club B, country T
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21.
Moreover, the members of the Chamber wished to underline and took into account
that the Respondent has been found by the Dispute Resolution Chamber as well as
the DRC judge responsible for not complying with its financial obligations towards
players on various other occasions in the recent past.
22.
Therefore, bearing in mind the considerations under numbers II./19. to II./21. above,
the DRC decided that in the event that the Respondent does not pay the amount
due to the Claimant within the 30 days following the notification of the present
decision, a ban from registering any new players, either nationally or
internationally, for the next two entire registration periods following the
notification of the present decision shall become effective on the Respondent in
accordance with art. 12bis par. 4 lit. d) of the Regulations.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, A, is accepted.
2.
The Respondent, club B, 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 51,375, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a.
b.
c.
d.
e.
f.
5% on EUR 2,000 as of 1 October 2015;
5% on EUR 2,000 as of 1 November 2015;
5% on EUR 11,875 as from 1 March 2016;
5% on EUR 11,000 as from 1 April 2016;
5% on EUR 12,000 as from 1 May 2016;
5% on EUR 12,500 as from 1 June 2016.
3.
In the event that the amount due to the Claimant, plus interest, 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 of
every payment received.
5.
In the event that the amount due to the Claimant is not paid by the Respondent
within 30 days as from the date of notification of this decision, the Respondent shall
Player A, country B / Club B, country T
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be banned from registering any new players, either nationally or internationally, for
the two next entire and consecutive registration periods following the notification
of the present decision.
*****
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 B / Club B, country T
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