DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 20 September 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Theo v an S eggelen (Netherlands ), 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 12 January 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 2017.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant, inter alia, a remuneration in the amount of EUR 137,500, which
was payable as follows:
-
EUR 12,500 on 15 January 2017;
EUR 25,000 on 18 January 2017;
EUR 25,000 on 28 February 2017;
EUR 25,000 on 31 March 2017;
EUR 25,000 on 30 April 2017;
EUR 25,000 on 31 May 2017.
3.
By correspondence dated 4 July 2017, the Claimant put the Respondent in default
of payment of the total amount of EUR 135,000 setting a time limit expiring on 15
July 2017 in order to remedy the default.
4.
On 18 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 EUR 135,000. In his claim, the Claimant explained that he has only
received EUR 2,500 from the Respondent.
5.
The Claimant further asks to be awarded interest as follows:
6.
5% on EUR 10,000 as from 16 January 2017;
5% on EUR 25,000 as from 19 January 2017;
5% on EUR 25,000 as from 1 March 2017;
5% on EUR 25,000 as from 1 April 2017;
5% on EUR 25,000 as from 1 May 2017;
5% on EUR 25,000 as from 1 June 2017.
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: 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 18 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 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 of
Country B and a club of Country D.
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 18 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 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, on 12 January 2017, the Claimant
and the Respondent signed an employment contract valid as from the date of
signature until 31 May 2017, in accordance with which the Claimant was entitled
to receive from the Respondent, inter alia, the amount of EUR 137,500. Said
amount was supposed to be paid with an instalment of EUR 12,500 due on 15
January 2017, as well as with 5 instalments of EUR 25,000 each, due on 18 January
2017, 28 February 2017, 31 March 2017, 30 April 2017 and 31 May 2017,
respectively.
6.
The Chamber observed, that on 18 July 2017, 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 135,000. In this regard, the
Player A, Country B / Club C, Country D
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Chamber observed that the Claimant held that from the EUR 137,500 he was
supposed to receive for the duration of the contract, he has only received EUR
2,500 from the Respondent.
7.
In this context, the DRC took particular note of the fact that, on 4 July 2017, the
Claimant put the Respondent in default of payment of the total amount of EUR
135,000, setting a time limit expiring on 15 July 2017 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 remuneration of EUR 137,500, amount that was payable in accordance
with the instalments detailed in point I.2 above. Moreover, the DRC duly noted
that the Claimant held that he has only received EUR 2,500, instead of EUR
137,500 as established in the contract.
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 Chamber established that
the Respondent failed to remit the Claimant’s remuneration in the total amount
of EUR 135,000, corresponding to the remaining outstanding amount in
accordance with the contract.
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.
Player A, Country B / Club C, Country D
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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 135,000.
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
payments, as of the day following the day on which the relevant payments fell
due, until the date of effective payment, as requested by the Claimant.
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 further established that by 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 29 October 2015 and 19 June 2017, respectively, the
Respondent had already been found to have delayed a due payment for more
than 30 days without a prima facie contractual basis, as a result of which fines had
been imposed on the Respondent by the Single Judge of the Players’ Status
Committee.
19.
Along this line, the Chamber further stressed that, on 25 August 2017, the
Respondent had already been found by the Bureau of the Players’ Status
Committee (Ref. No. XXX), for the third time, to have delayed a due payment for
more than 30 days without a prima facie contractual basis, as a result of which in
the event that the Respondent does not pay the amount due in accordance with
said decision, within the 30 days following its notification, a ban from registering
any new players, either nationally or internationally, for the next entire
registration period following the notification of the mentioned decision shall
become effective on the Respondent.
20.
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 fourth time.
21.
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.
22.
Bearing in mind the considerations under numbers II.17., II.18., II.19., II.20., and
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
Player A, Country B / Club C, Country D
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the present decision, a ban 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 shall become effective on the
Respondent in accordance with art. 12bis par. 4 lit. d) of the Regulations.
23.
In this regard, the DRC considered important to clarify that should the
Respondent fail to pay the amount awarded by the Bureau of the Players’ Status
Committee in case Ref. No. XXX, as well as the amount awarded in the present
matter, the registration ban imposed in the present matter would run
concurrently with the ban which will be eventually imposed in case Ref. No. XXX
III.
Decis ion of the Dis pute 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, w ithin 30 day s as from the
date of notification of this decision, overdue payables in the amount of EUR
135,000, 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 EUR 10,000 as from 16 January 2017;
b. 5% p.a. on the amount of EUR 25,000 as from 19 January 2017;
c. 5% p.a. on the amount of EUR 25,000 as from 1 March 2017;
d. 5% p.a. on the amount of EUR 25,000 as from 1 April 2017;
e. 5% p.a. on the amount of EUR 25,000 as from 1 May 2017;
f. 5% p.a. on the amount of EUR 25,000 as from 1 June 2017.
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
Player A, Country B / Club C, Country D
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shall 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 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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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