DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 October 2015,
in the following composition:
Geoff Thompson (England), Chairman
Taku Nomiya (Japan), member
Theodore Giannikos (Greece), member
Eirik Monsen (Norway), member
Joaquim Evangelista (Portugal), 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 25 July 2014, the player from country B, Player A (hereinafter: Claimant), and the
club from country D, Club C (hereinafter: Respondent) signed an agreement on the
termination (hereinafter: termination agreement) of the employment contract and
the “variation agreement” that were previously concluded between the Claimant
and the Respondent on 16 July 2012 and 5 August 2013, respectively.
2.
In accordance with the termination agreement, the Respondent undertook to pay to
the Claimant the amount of EUR 750,000 in three instalments as follows: EUR 150,000
until 13 August 2014, EUR 300,000 until 30 September 2014 and EUR 300,000 until 30
November 2014.
3.
By correspondence dated 15 July 2015, the Claimant put the Respondent in default
of payment of the amount of EUR 750,000 setting a time limit expiring on 26 July
2015 in order to remedy the default.
4.
On 12 June 2015, with a subsequent amendment on 27 July 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 750,000 on the
basis of the termination agreement, plus interest as well as legal costs. The Claimant
further asked that the Respondent be sanctioned in accordance with art. 12bis of the
Regulations on the Status and Transfer of Players (edition 2015).
5.
In reply to the claim, the Respondent contested that art. 12bis of the Regulations on
the Status and Transfer of Players (edition 2015) is applicable to the present matter,
the agreement at the basis of the claim having been signed prior to the entry into
force of said article.
6.
Therefore, the Respondent deems that the Claimant’s request must be dismissed.
II.
Considerations of the Dispute Resolution Chamber
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 12 June 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 in combination with art.
Player A, country B / Club C, country D
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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, it 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 present claim was lodged on 12 June 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 the documentation submitted by the parties. 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, on 25 July 2014, the Claimant and the
Respondent signed a termination agreement, in accordance with which the Claimant
was entitled to receive from the Respondent the amount of EUR 750,000 .
6.
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
750,000 corresponding to the full amount stipulated in the termination agreement.
7.
Subsequently, the DRC took into account that the Respondent, for its part, merely
held that art. 12bis of the Regulations on the Status and Transfer of Players does not
apply to the present matter, in the light of the fact that the agreement at the basis
of the claim was signed prior to the entry into force of art. 12bis of the Regulations
on the Status and Transfer of Players. The members of the Chamber took particular
note of the fact that the Respondent has not challenged the Claimant’s claim that
the full amount of EUR 750,000 remains overdue. In fact, the Respondent has not
commented on the substance of the Claimant’s claim.
8.
On account of the above, the Chamber established that the Respondent failed to
remit the Claimant’s remuneration in the total amount of EUR 750,000 in accordance
with the termination agreement.
9.
In continuation, the members of the Chamber turned their attention to the
Respondent’s submission that art. 12bis of the Regulations on the Status and Transfer
of Players, referred to by the Claimant in his statement of claim, does not apply to
Player A, country B / Club C, country D
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the present matter, since the agreement at the basis of the present dispute was
signed prior to the entry into force of said article.
10.
In this regard, the Chamber stressed that said art. 12bis was first included in the 2015
edition of the mentioned Regulations.
11.
As already established above by this Chamber (cf. number II./3.), the 2015 edition of
the Regulations on the Status and Transfer of Players is applicable as to the substance
of the matter, bearing in mind that the claim was lodged on 12 June 2015. Indeed,
art. 26 par. 1 and par. 2 of the 2015 edition of the Regulations on the Status and
Transfer of Players stipulate that “1. Any case that has been brought to FIFA before
these regulations come into force shall be assessed according to the previous
regulations. 2. As a general rule, all other cases shall be assessed according to these
regulations with the exception of the following: a) …; b)…; c) labour disputes
relating to contracts signed before 1 September 2001. …”.
12.
In continuation, the Chamber stressed that the agreement at the basis of the present
matter was signed on 25 July 2014 and, thus, does not fall within the exception “c)
labour disputes relating to contracts signed before 1 September 2001. …” mentioned
in art. 26 par. 2 of the aforementioned Regulations.
13.
Subsequently, the Chamber highlighted that it is undisputed that the Claimant
lodged his claim after the entry into force of art. 12bis of the 2015 edition of the
Regulations on the Status and Transfer of Players on 1 March 2015 (cf. FIFA circular
no 1468 dated 23 January 2015).
14.
On account of the above considerations, the Chamber could not uphold the
Respondent’s viewpoint with regard to art. 12bis of said Regulations and confirmed
that art. 12bis of the Regulations on the Status and Transfer of Players (edition 2015)
does apply in the matter at stake.
15.
Having established the above, the DRC took into account that, on 15 July 2015, the
Claimant put the Respondent in default of payment of the amount of EUR 750,000,
setting a time limit expiring on 26 July 2015 in order to remedy the default.
16.
Consequently, the Chamber 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).
17.
In addition, the DRC 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
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18.
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 750,000.
19.
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 EUR 750,000 as from
the date of receipt of the claim, i.e. 12 June 2015, until the date of effective
payment.
20.
Moreover, as regards the claimed legal expenses, the Chamber referred to art. 18
par. 4 of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the DRC decided to reject the Claimant’s request relating to legal expenses.
21.
In continuation, taking into account the consideration under number II./17. above,
the members of 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 Regulations.
22.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent replied to the claim of the Claimant and in the absence of the
circumstance of repeated offence, the Chamber decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
23.
In this connection, the DRC 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.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially 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 EUR 750,000 plus
5% interest p.a. as of 12 June 2015 until the date of effective payment.
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.
3.
Player A, country B / Club C, country D
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4.
Any further request filed by 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 judge
of every payment received.
6.
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:
Markus Kattner
Acting Secretary General
Encl.
CAS directives
Player A, country B / Club C, country D
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