DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 5 October 2015,
by Theo van Seggelen (Netherlands), DRC judge,
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 28 February 2014, 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 28 February 2014 until 30 November 2014.
2.
On 1 June 2014, the Claimant and the Respondent signed a termination agreement
by means of which the parties prematurely put an end to the contract. In accordance
with the termination agreement, the Respondent undertook to pay to the Claimant
the amount of USD 50,000 by no later than 15 June 2014.
3.
By correspondence dated 1 April 2015, the Claimant put the Respondent in default
setting a time limit of fifteen days in order to remedy the default.
4.
On 4 August 2015, the Claimant lodged a claim against the Respondent in front of
FIFA requesting that the Respondent be ordered to pay to him overdue payables in
the amount of USD 50,000.
5.
The Claimant further requested to be awarded interest as of the relevant due date.
6.
In spite of having been invited to do so, the Respondent did not reply to the claim.
II.
Considerations 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 4 August 2015. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2015;
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
2015) he 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 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 2015), and reiterating that the present claim was lodged on 4 August 2015,
the 2015 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,
Player A, country B / Club C, country D
Page 2 of 5
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, DRC judge acknowledged that the Claimant and the Respondent
signed a termination agreement on 1 June 2014 in order to put an end to the
employment contract signed by them on 28 February 2014. In accordance with the
termination agreement, the Respondent undertook to pay the Claimant the amount
of USD 50,000 by no later than 15 June 2014.
6.
Furthermore, the DRC judge acknowledged that 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 USD 50,000.
7.
In this context, the DRC judge took particular note of the fact that, on 1 April 2015,
the Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit of fifteen days in order to remedy the default.
8.
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).
9.
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.
10.
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 on file, in other words, upon the
statements and documents presented by the Claimant.
11.
Having said this, the DRC judge acknowledged that, in accordance with the
termination agreement provided by the Claimant, the Respondent was obliged to
pay to the Claimant USD 50,000.
12.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the DRC judge established that the Respondent failed to
remit the Claimant’s remuneration in the total amount of USD 50,000.
13.
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.
Player A, country B / Club C, country D
Page 3 of 5
14.
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 50,000.
15.
Moreover, 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 50,000 as from
the relevant due dates until the date of effective payment.
16.
Finally, 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.
17.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. 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 50,000,
the DRC judge regarded a fine amounting to CHF 5,000 as appropriate and hence
decided to impose said fine on the Respondent.
18.
In this regard, 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.
Decision of the DRC judge
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 50,000
plus 5% interest p.a. on said amount as from 16 June 2014 until the date of effective
payment.
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.
Player A, country B / Club C, country D
Page 4 of 5
5.
The Respondent is ordered to pay a fine in the amount of
CHF 5,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case nr.:
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 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 DRC judge:
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
Page 5 of 5