DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 27 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 5 September 2013, 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 of the date of its signature until 30 June 2014.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant inter alia a monthly salary of EUR 5,000.
3.
By correspondence dated 22 July 2015, the Claimant put the Respondent in
default of payment of EUR 25,000 setting a time limit of 10 days in order to
remedy the default.
4.
On 2 September 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 EUR 25,000 corresponding to his salaries of February,
March, April, May and June 2014. Equally, the Claimant requested to be awarded
with 5% interest p.a. as of 1 July 2014.
5.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as
Chamber of 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 2 September 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 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 conjunction 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 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
Player A, Country B / Club C, Country D
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(edition 2015), and considering that the present claim was lodged on 2 September
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 Chamber 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 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 members of the Chamber acknowledged that the Claimant
and the Respondent entered into an employment contract valid as of 5 September
2013 until 30 June 2014, in accordance with which the Claimant was entitled to
receive from the Respondent a monthly salary of EUR 5,000.
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 towards him in the amount of EUR 25,000 corresponding to his salaries
of February, March, April, May and June 2014.
7.
In this context, the members of the DRC took particular note of the fact that, on
22 July 2015, 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.
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 Chamber 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
members of the Chamber concurred that in accordance with art. 9 par. 3 of the
Procedural Rules, they shall take a decision upon the basis of the documents on
Player A, Country B / Club C, Country D
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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 him
inter alia a monthly salary of EUR 5,000.
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 DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of
EUR 25,000 corresponding to his salaries of February, March, April, May and June
2014.
14.
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.
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 25,000.
16.
Moreover, 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 EUR
25,000 as from 1 July 2014 until the date of effective payment.
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.
In this context, the members of the Chamber highlighted that, on 12 June 2015
and 1 October 2015, the Respondent had already been found to have delayed a
due payment for more than 30 days without a prima facie contractual basis and
without the Respondent having responded to the relevant claims, as a result of
which fines had been imposed on the Respondent by the DRC judge.
Consequently, the Chamber established that, for the third time, the Respondent
has delayed a due payment for more than 30 days without a prima facie
contractual basis and without having answered to the claim.
Player A, Country B / Club C, Country D
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19.
Along these lines, the members of the Chamber established that in virtue of art.
12bis par. 4 of the Regulations, they have competence to impose sanctions on the
Respondent. Moreover, 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. Bearing in mind the consideration
under number II./18. 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 the present decision, a ban from registering any new
players, either nationally or internationally, for the next entire registration period
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.
*****
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 overdue payables in the
amount of EUR 25,000 within 30 days as from the date of notification of this
decision plus interest at the rate of 5% p.a. as of 1 July 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
Dispute Resolution Chamber of every payment received.
Player A, Country B / Club C, Country D
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5.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, the Respondent shall be banned from registering any
new players, either nationally or internationally, for the next entire registration
period following the notification of the present decision.
*****
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:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, Country B / Club C, Country D
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