DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 15 October 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), member
on the claim presented by the player,
Player 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 case
1.
On an unspecified date, the player from country B, Player A (hereinafter: the
Claimant) and the club from country D, Club C (hereinafter: the Respondent) signed
an employment contract valid as from 17 July 2014 until 31 May 2015.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia the following amounts:
a. USD 50,000 on 17 July 2014;
b. USD 15,000 on 31 October 2014;
c. USD 15,000 on 30 November 2014;
d. USD 17,500 on 31 January 2015;
e. USD 15,000 on 28 February 2015;
f. USD 17,500 on 31 March 2015.
3.
Moreover, the contract provided that “USD 2,500 wage per match shall be paid only
for 34 league matches. This wage shall be paid 100% in being first eleven, 75% in
being first eighteen and join the match and 50% if being in first eighteen and not
joining the match”.
4.
By correspondence dated 12 August 2015, the Claimant put the Respondent in
default of payment of the total amount of USD 117,500 setting a time limit of 10
days in order to remedy the default.
5.
On 31 July 2015, and completed on 22 August 2015, 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 117,500 corresponding to
outstanding salaries and outstanding match bonuses plus 5% interest on said
amount as of 31 May 2015.
6.
In its reply to the claim, the Respondent argued that “the plaintiff’s claims are
extremely unrealistic” and enclosed several payment receipts in the language of
country D only for the total amounts of 47,504 and of USD 82,500. Therefore, the
Respondent “demand the rejection of [the claim] because of the payment
documents in the appendix”.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the DRC
or the Chamber) analysed whether it was competent to deal with the matter at
hand. In this respect, the Chamber took note that the present matter was submitted
to FIFA on 31 July 2015. Consequently, the 2015 edition of the Rules Governing the
Player A, country B / Club C, country D
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Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
2.
Subsequently, the members of 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
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2015), the Dispute Resolution Chamber is competent to deal with
the matter at stake, which concerns an employment-related dispute with an
international dimension between a player from country B and a club from country D.
3.
Furthermore, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, the Chamber confirmed that in accordance
with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players
(edition 2015), and considering that the claim was lodged in front of FIFA on 31 July
2015, the 2015 edition of the aforementioned regulations (hereinafter: the
Regulations) is applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, and entering into the substance of the matter, the Chamber started by
acknowledging the above-mentioned facts as well as the documentation contained
in the 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 as of 17 July 2014 until 31 May 2015, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, the following amounts:
a. USD 50,000 on 17 July 2014;
b. USD 15,000 on 31 October 2014;
c. USD 15,000 on 30 November 2014;
d. USD 17,500 on 31 January 2015;
e. USD 15,000 on 28 February 2015;
f. USD 17,500 on 31 March 2015 and;
g. “USD 2,500 wage per match shall be paid only for 34 league matches. This
wage shall be paid 100% in being first eleven, 75% in being first eighteen
and join the match and 50% if being in first eighteen and not joining the
match”.
6.
Furthermore, the DRC took note that the Claimant lodged a claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue payables
Player A, country B / Club C, country D
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towards him in the total amount of USD 117,500 corresponding to outstanding
salaries and outstanding match bonuses.
7.
In this context, the Chamber took particular note of the fact that, on 12 August
2015, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a time limit of 10 days 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 acknowledged that, for its part, the Respondent held, whilst
enclosing several payment receipts in the language of country D only, that it had no
outstanding amount towards the player and therefore requested the rejection of
the Claimant’s claim “because of the payment documents in the appendix”.
10.
At this point, the DRC wished to recall that according to the legal principle of the
burden of proof contained in art. 12 par. 3 of the Procedural Rules, any party
claiming a right on the basis of an alleged fact carries the burden of proof.
11.
With those considerations in mind, the members of the DRC first of all wished to
emphasise that the Respondent did not challenge at any moment the entitlement of
the Claimant to the total amount he was supposed to receive during the contractual
relationship, but only limited itself to argue that, in view of the enclosed payment
receipts, it did not have any outstanding amount towards the Claimant.
12.
Along these lines, the members of the DRC were of the unanimous opinion that the
documentary evidence presented by the Respondent is not sufficient in order to
prove that it had covered all the amounts claimed by the Claimant. In this regard,
the Chamber highlighted, while referring to art. 9 par. 1 lit. e) of the Procedural
Rules, which stipulates that all documents of relevance to the dispute shall be
submitted with a translation into one of the official FIFA languages (English,
Spanish, French and German), that the Respondent failed to present the necessary
translation of the payment receipts enclosed to its reply. This, despite the fact that
the FIFA administration duly informed the Respondent that failure to present any
necessary translation of a document, may result in the latter being disregarded by
the decision-making body.
13.
Consequently, the DRC unanimously decided that the argumentation put forward by
the Respondent in its defence had not been sufficiently substantiated.
Player A, country B / Club C, country D
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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 USD
117,500 corresponding to outstanding salaries and outstanding match bonuses.
15.
Furthermore, 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 USD 117,500.
17.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of USD 117,500 as from
31 May 2015 until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./15. 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.
19.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent duly replied to the claim of the Claimant and in the absence of the
circumstance of repeated offence, the DRC decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
20.
In this respect, the members of the Chamber 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.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is accepted.
2.
The Respondent, Club C, 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 117,500
plus interest at the rate of 5% p.a. as from 31 May 2015 until the date of effective
payment.
3.
In the event that the amount plus interest due to the Claimant is not paid by the
Respondent within the stated time limit, the present matter shall be submitted,
Player A, country B / Club C, country D
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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 Dispute
Resolution Chamber of every payment received.
5.
A warning is imposed on the Respondent.
*****
Note relating to the motivated decision (legal remedy):
According to article 67 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
Acting Deputy Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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