DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 8 September 2016,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Leonardo Grosso (Italy), member
Theodore Giannikos (Greece), member
Mohamed Mecherara (Algeria), member
on the claim presented by the player,
A, country U
represented by Mr xxxxx
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 12 January 2016, the player from country U, A (hereinafter: Claimant), and the
club from country T, club B (hereinafter: Respondent) signed an employment
contract valid as from 13 January 2016 until 31 May 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant inter alia a remuneration of USD 150,000 in 5 equal monthly
instalments of USD 30,000 each, due as follows:
-
30 January 2016;
“30.02.2016”;
30 March 2016;
30 April 2016;
30 May 2016.
3.
By correspondence dated 1 July 2016, the Claimant put the Respondent in default
of payment of the amount of USD 150,000 regarding the five monthly instalments
established in the contract, setting a 10 days’ time limit in order to remedy the
default.
4.
On 1 June 2016, and completed on 12 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 USD 150,000 corresponding to the
remuneration established in the contract.
5.
The Claimant further asks to be awarded interest of 5% p.a. as of the respective
due dates of each instalment.
6.
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 1 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).
Player A, country U / Club B, country T
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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 employmentrelated dispute with an international dimension between a player from country U
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 1 June 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.
5.
Having said this, the DRC acknowledged that the Claimant and the Respondent
signed an employment contract valid from 13 January 2016 until 31 May 2016, in
accordance with which the Claimant was entitled to receive from the Respondent
inter alia a remuneration of USD 150,000 payable in 5 instalments.
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
USD 150,000 corresponding to the remuneration established in the contract.
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 of USD 150,000, setting a 10 days’ time limit 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).
Player A, country U / Club B, country T
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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 USD 150,000 in 5 equal monthly instalments.
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.
13.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s contractual remuneration in the total
amount of USD 150,000.
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 USD 150,000.
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 art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. In this context, the DRC
highlighted that, on 17 April 2015 and 11 September 2015, the Respondent had
Player A, country U / Club B, country T
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already been found 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 claims, as a result of which fines had been imposed on
the Respondent by the Single Judge of the Players’ Status Committee and by the
Dispute Resolution Chamber, respectively. Consequently, the DRC established that
the Respondent has delayed a due payment for more than 30 days without a
prima facie contractual basis and without having answered to the claim for the
third time.
19.
Moreover, 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.
20.
Bearing in mind the considerations under numbers II./18. and II./19. 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 entire registration period 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 USD
150,000, plus interest at the rate of 5% p.a. until the date of effective payment as
follows:
a. 5% p.a. on the amount of USD 30,000 as from 31 January 2016;
b. 5% p.a. on the amount of USD 30,000 as from 1 March 2016;
c. 5% p.a. on the amount of USD 30,000 as from 31 March 2016;
d. 5% p.a. on the amount of USD 30,000 as from 1 May 2016;
e. 5% p.a. on the amount of USD 30,000 as from 31 May 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.
Player A, country U / Club B, country T
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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 be banned from registering any new players, either nationally or
internationally, for the next entire registration period 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 U / Club B, country T
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