DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 27 September 2018,
by Philippe Diallo (France), 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 19 January 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 19 January 2016 until 30 June 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia USD 6,000 per month as “from the end of February 2016 until
End of June 2016”.
3.
By correspondence dated 29 April 2018, the Claimant put the Respondent in default
of payment of USD 24,000 corresponding to 5 monthly salaries setting a 10 days’
time limit in order to remedy the default.
4.
On 8 May 2018, and completed on 6 June 2018, 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 24,000. The Claimant clarified that this
amount corresponds to the salaries of March, April, May and June 2016, due on 31
March 2016, 30 April 2016, 31 May 2016 and 30 June 2016 respectively according to
the Claimant, in the amount of USD 6,000 each.
5.
The Claimant further asks to be awarded “the legal interests of each monthly salary
from the due date of each payment”.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
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 8 May 2018. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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
2018) 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.
Player A, Country B / Club C, Country D
Page 2 of 7
3.
Before entering into the substance of the present matter and while exercising his duty
to analyse ex officio the admissibility of every claim lodged in front of him, the DRC
Judge noted that the question of prescription must be discussed in the context of the
present claim.
4.
In this regard, the DRC judge referred to art. 25 par. 5 of the FIFA Regulations
(edition2018 ), according to which, inter alia, the DRC judge shall not hear any case
subject to said Regulations if more than two years have elapsed since the event giving
rise to the dispute. In this respect, the Chamber noted that the present claim was lodged
in front of the DRC on 8 May 2018. Therefore, in line with art. 25 par. 5 of the
Regulations, any amounts fallen due before 8 May 2016 are affected by prescription.
The DRC judge noted that the Claimant, inter alia, requests the payment of the salaries
of March, April, May and June all 2016, due, according to the Claimant himself, on
31 March 2016, 30 April 2016, 31 May 2016 and 30 June 2016, respectively, which
allegedly were not paid by the Respondent. Bearing in mind the foregoing, the DRC
judge concluded that the Claimant’s request for the payment of the salary of March
2016, due on 31 March 2016 and the salary of April, 2016, due on 30 April 2016, is
time-barred by the statute of limitations in application of art. 25 par. 5 of the
Regulations Consequently, this specific part of the Claimant’s claim is considered
inadmissible.
5.
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 2018), and considering that the present claim was lodged on 8 May 2018,
the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
6.
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.
7.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 19 January 2016 until 30
June 2016, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, USD 6,000 per month as from end of February 2016 until end
of June 2016.
Player A, Country B / Club C, Country D
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8.
As established before, the DRC Judge duly took note that the Claimant lodged a
claim against the Respondent in front of FIFA on 8 May 2018, maintaining that the
Respondent has overdue payables towards him in the total amount of USD 24,000
corresponding to the salaries of March 2016 to June 2016 included.
9.
In this context, the DRC judge took particular note of the fact that, on 29 April 2018,
the Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit of 10 days in order to remedy the default.
10.
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).
11.
Subsequently, the DRC judge 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 judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
12.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.
13.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant USD 6,000 per month as “from the end of February 2016 until End of
June 2016” as per the contract.
14.
In this context, the DRC judge recalled that as established in the considerations
under number II./4. above any amounts fallen due before 8 May 2016 are a barred by
the statute of limitations in application of art. 25 par. 5 of the Regulations.
15.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
16.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of
USD 12,000 corresponding to the monthly salaries of May and June 2016, due on 31
May 2016, and 30 June 2016, respectively.
Player A, Country B / Club C, Country D
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17.
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.
18.
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 USD 12,000.
19.
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 USD
6,000 as of 1 June 2016 until the date of effective payment and on the amount of
USD 6,000 as of 1 July 2016 until the date of effective payment.
20.
In continuation, taking into account the consideration under number II./17 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.
21.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Therefore, and bearing in mind
that the Respondent did not reply to the claim of the Claimant, 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
USD 12,000, the DRC judge regarded a fine amounting to CHF 2,000 as appropriate
and hence decided to impose said fine on the Respondent.
22.
In this respect, the DRC judge 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.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is accepted insofar as it is admissible.
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 USD 12,000,
plus interest at the rate of 5% p.a. until the date of effective payment as follows:
5% p.a. as from 1 June 2016 on the amount of USD 6,000;
5% p.a. as from 1 July 2016 on the amount of USD 6,000.
Player A, Country B / Club C, Country D
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3.
In the event that the amount due to the Claimant 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 judge
of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 2,000. 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
Player A, Country B / Club C, Country D
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For the DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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