DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 4 September 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (USA), 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 an unspecified date in July 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 15 July 2016 until 31 May 2018.
2.
On 24 February 2017, the Claimant and the Respondent signed an agreement, by means
of which the employment contract was terminated and the Respondent undertook to pay
to the Claimant inter alia the amount of EUR 355,000 as follows:
a. EUR 25,000 “on or before 25 March 2017”;
b. EUR 330,000 “on or before 1 August 2017”.
3.
By correspondence dated 7 June 2018, the Claimant put the Respondent in default of
payment of EUR 355,000 setting a 14 days’ time limit in order to remedy the default.
4.
By correspondence dated 26 June 2018, the Claimant once again put the Respondent in
default of payment of EUR 355,000 setting a 7 days’ time limit in order to remedy the
default.
5.
On 24 July 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
EUR 355,000.
6.
The Claimant further asked to be awarded interest “thereon at 5% or at the legal rate
from 1 August 2017”.
7.
The Respondent, for its part, asked for a 36 months’ payment plan in order to settle its
debt towards the Claimant due to its alleged difficult financial situation.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 24 July 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).
Player A, Country B / Club C, Country D
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2.
Subsequently, the DRC 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) 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 Chamber 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 2018), and
considering that the present claim was lodged on 24 July 2018, the 2018 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
Chamber entered into the substance of the matter. In this respect, the Chamber started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the DRC 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 in July 2016 valid as from 15 July 2016 until 31 May 2018.
6.
In continuation, the Chamber recalled that on 24 February 2017, the Claimant and the
Respondent signed an agreement by means of which the said employment contract was
terminated.
7.
The DRC highlighted that, in accordance with the said termination agreement, the
Respondent undertook to pay to the Claimant EUR 355,000 in two instalments of EUR
25,000 and EUR 330,000 on 25 March 2017 and on 1 August 2017 the latest, respectively.
8.
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 355,000
corresponding to the relevant amounts as stipulated in the aforementioned termination
agreement.
9.
In this context, the DRC took particular note of the fact that, on 7 June 2018, the Claimant
put the Respondent in default of payment of the amount of EUR 355,000, setting a time
limit expiring on 21 June 2018 in order to remedy the default.
Player A, Country B / Club C, Country D
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10.
Moreover, the Chamber recalled that on 26 June 2018, the Claimant once again put the
Respondent in default of payment of the same amounts, setting a 7 days’ time limit in
order to remedy the default.
11.
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).
12.
Subsequently, the Chamber took into account that the Respondent, for its part,
acknowledged its debt towards to the Claimant, but that it wished to pay the amount
over a 36 months’ period of time in light of its apparent difficult financial situation.
13.
In this regard, the DRC considered that the position of the Respondent cannot be
considered a valid reason for non-payment of the monies claimed by the Claimant, in
other words, the reasons brought forward by the Respondent in its defence do not exempt
the Respondent from its obligation to fulfil its contractual obligations towards the
Claimant.
14.
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
355,000.
15.
In addition, the DRC established that the Respondent had delayed a due payment for more
than 30 days without a prima facie contractual basis.
16.
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 355,000.
17.
In addition, taking into account the Claimant’s request as well as its constant practice, the
DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the
amount of EUR 355,000 as follows:
a. 5% p.a. on the amount of EUR 25,000 as from 1 August 2017;
b. 5% p.a. on the amount of EUR 330,000 as from 2 August 2017.
18.
In continuation, taking into account the consideration under number II./15. above, the
Chamber 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
Player A, Country B / Club C, Country D
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Regulations. The DRC further established that by virtue of art. 12bis par. 4 of the
Regulations it has competence to impose sanctions on the Respondent.
19.
Having said that, to start with, the DRC took note that the Respondent is involved in one
other employment-related dispute in connection with overdue payables, which, in
addition to the present matter, has been submitted to this Chamber today and in which
sanctions have been imposed on the Respondent.
20.
Furthermore, the DRC highlighted that, in the recent past, the Respondent had been
found to have delayed a due payment for more than 30 days without a prima facie
contractual basis on various occasions, as a result of which sanctions had been imposed on
the Respondent by the relevant decision making bodies.
21.
Along this line, the Chamber stressed that, on 20 September 2017, the Respondent had
last been found, by the DRC, 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 would not pay the amount due within the time limit set in said decision, a
ban from registering any new players, either nationally or internationally, for the next
two entire registration periods following the notification of the mentioned decision
would become effective on the Respondent. The Chamber noted that such ban became
effective as of the registration period in Country D in January 2018.
22.
In addition, the members of the Chamber wished to underline and took into account that
the Respondent had been found by the Dispute Resolution Chamber and/or the DRC judge
responsible for not complying with its financial obligations towards players on various
other occasions in the recent past.
23.
In addition, the Chamber took into consideration that 2 years or more ago the Respondent
had already been found to have delayed a due payment for more than 30 days without a
prima facie contractual basis.
24.
Bearing in mind the above, the Chamber 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 a more severe penalty.
25.
On account of the above considerations and in accordance with art. 12bis par. 4 lit. d) in
conjunction with art. 12bis paras 7 and 8 of the Regulations, the DRC decided that the
Respondent shall be banned from registering any new players, either nationally or
internationally, for one entire registration period. The execution of this registration ban
is suspended during a probationary period of one year following the notification of the
present decision. If the Respondent commits another infringement during the one year
Player A, Country B / Club C, Country D
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probationary period, the suspension is automatically revoked and the registration ban
executed.
26.
Furthermore, the DRC decided to impose a fine on the Respondent in accordance with art.
12bis par. 4 lit. c) and par. 5 of the Regulations. Taking into consideration the specificities
of the case at hand and the amount due of EUR 355,000, the DRC regarded a fine
amounting to CHF 20,000 as appropriate and hence decided to impose said fine on the
Respondent.
III.
Decision of the Dis pute Res olution Cham ber
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 amount of EUR 355,000, 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 25,000 as from 1 August 2017;
b. 5% p.a. on the amount of EUR 330,000 as from 2 August 2017.
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.
Any further claim of 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 of every
payment received.
6.
The Respondent shall be banned from registering any new players, either nationally or
internationally, for one entire registration period. The execution of this registration ban
is suspended during a probation period of one year following the notification of the
present decision. If the Respondent commits another infringement during the
probationary period, the suspension is automatically revoked and the registration ban
executed.
Player A, Country B / Club C, Country D
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7.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 20,000. 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 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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