DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 6 September 2017,
by Theo Van S eggelen (Netherlands), DRC judge,
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 1 March 2016, the Player of Country B, Player A (hereinafter: Claimant), and the
Club of Country D, Club C (hereinafter: Respondent), signed an employment
contract valid as from the date of signature until 10 December 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, a monthly salary of 1,200,000.
3.
By correspondence dated 13 February 2017, the Claimant put the Respondent in
default of payment of his salary for the period between 1 November and 10
December 2016. By means of such correspondence, the Claimant set a 10 days’ time
limit in order to remedy the default.
4.
On 6 July 2017, 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 1,628,751, corresponding to:
- 1,200,000 for the salary of November 2016;
- 428,751 for the salary of the period between 1 and 10 December 2016.
5.
The Claimant further asked to be awarded interest of 5% on the aforementioned
amounts as of 10 December 2016 and that the Respondent be ordered to pay all
legal expenses and procedural costs.
6.
In reply to the claim, the Respondent held that its debt towards the Claimant, on 10
December 2016, amounted to 1,524,545, without specifying the contractual
obligations this amount is related to. Moreover, the Respondent stated, without
providing any evidence, that it paid such amount to the Claimant as follows:
- 990,000 on 19 April 2017;
- 534,545 on 31 July 2017.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 6 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 judge 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
Player A, Country B / Club C, Country D
Page 2 of 6
2016) he 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 DRC judge 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 6 July 2017,
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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge 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.
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 1 March 2016 until 10
December 2016. The DRC judge also took note that, pursuant to the employment
contract, the Claimant was entitled to receive from the Respondent, inter alia, a
monthly salary of 1,200,000.
7.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining
that the Respondent has overdue payables towards him in the amount of 1,628,751,
corresponding to:
a) 1,200,000 for the salary of November 2016;
b) 428,751 for the salary of the period between 1 and 10 December 2016.
6.
In this context, the DRC judge took particular note of the fact that, on 13 February
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.
7.
Consequently, the DRC judge 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).
8.
Subsequently, the DRC judge took into account that the Respondent, for its part,
did not dispute that the Claimant was entitled to the salary for the requested
period. It stated however that he was entitled to a lower amount and that it had
Player A, Country B / Club C, Country D
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already paid it. Having noticed the above, the DRC judge referred to art. 12 par. 3
of the Procedural Rules, according to which any party claiming a right on the basis
of an alleged fact shall carry the respective burden of proof. On the basis of said
principle, the DRC judge concluded that it was up to the Respondent to prove that
it actually provided the Claimant with the salaries he was entitled to.
9.
Having stated the above, the DRC judge held that the Respondent did not
substantiate its allegations, as it did not provide evidence which could prove that
the payment regarding the claimed amounts was actually made to the Claimant.
10.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount
1,628,751, corresponding to the salary for the period between 1 November and 10
December 2016.
11.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
12.
Consequently, the DRC judge 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 in the total amount of 1,628,751.
13.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of
1,628,751, as from 11 December 2016 until the date of effective payment.
14.
In continuation, taking into account the consideration under number II./13 above,
the DRC judge 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.
15.
The DRC judge established that, in virtue of art. 12bis par. 4 of the Regulations, he
has competence to impose sanctions on the Respondent. In this context, the DRC
judge highlighted that, on two different occasions, the Respondent had already
been found to have delayed a due payment for more than 30 days without a prima
facie contractual basis and with the Respondent having responded to the relevant
claim. The first one on 18 May 2017, as a result of which a warning had been
imposed on the Respondent by the DRC judge. The second on 6 September 2017, as
a result of which a reprimand had been imposed on the Respondent by the DRC
judge.
Player A, Country B / Club C, Country D
Page 4 of 6
16.
Moreover, the DRC judge 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.
17.
Bearing in mind that the Respondent has replied to the claim of the Claimant as
well as the considerations under numbers II./16. and II./17. above, the DRC judge
decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit.
c) of the Regulations. Furthermore, taking into consideration the amount due of
1,628,751, the DRC judge regarded a fine amounting to CHF 1,000 as appropriate
and hence decided to impose said fine on the Respondent.
18.
Furthermore, as regards the claimed legal expenses and procedural costs, the DRC
judge referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the DRC, in accordance with which
no procedural compensation shall be awarded in proceedings in front of the
Dispute Resolution Chamber. Consequently, the DRC judge decided to reject the
Claimant’s request relating to legal expenses. Furthermore, in this context, the DRC
judge highlighted that according to art. 18 par. 2 of the Procedural Rules, DRC
proceedings relating to employment-related disputes between a club and a player
of an international dimension are free of charge.
19.
The DRC judge concluded his deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s as from the
date of notification of this decision, overdue payables in the amounts of 1,628,751,
plus interest at the rate of 5% p.a. as from 11 December 2016 until the date of
effective payment.
3.
In the event that the aforementioned sum plus interest is not paid by the
Respondent within the stated time limit, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
4.
Any further claim lodged by the Claimant is rejected.
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 DRC judge
of every payment received.
Player A, Country B / Club C, Country D
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6. The Respondent is ordered to pay a fine in the amount of
CHF 1,000. The fine is to be paid w ithin 30 day s of notification of the present
decision to FIFA to the following bank account with reference to case nr. XXX :
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 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
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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