DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Wouter Lambrecht (Belgium), 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 1 September 2015, the player from country B, Player A (hereinafter: Claimant),
and the club from country D, Club C (hereinafter: Respondent) signed an
employment contract valid as from the date of signature until 30 June 2017.
2.
On 27 January 2016, the Claimant and the Respondent signed an agreement, in
accordance with which the parties agreed to terminate the employment contract
(hereinafter: termination agreement) and the Respondent undertook to pay to
the Claimant the amount of EUR 23,000 in two instalments of EUR 11,500 each,
falling due on or before 22 February 2016 and 31 March 2016, respectively.
3.
By correspondence dated 9 May 2016, the Claimant put the Respondent in default
of payment of the second instalment of EUR 11,500 setting a time limit expiring
on 19 May 2016 in order to remedy the default.
4.
On 25 May 2016, 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 11,500 corresponding to the instalment that fell due on 31
March 2016 the latest.
5.
The Claimant further asks to be awarded interest of 5% p.a. on said amount as
from 1 April 2016.
6.
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: 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 25 May
2016. 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).
Player A, country B / Club C, country D
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2.
Subsequently, 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
2016), it 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 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 2016), and considering that the present claim was lodged 25 May 2016,
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 and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the 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 DRC acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 1 September 2015 until 30 June
2017, which was terminated by mutual consent in writing on 27 January 2016. It
was further noted that in accordance with the termination agreement, the
Respondent undertook to pay to the Claimant the amount of EUR 23,000 in two
instalments of EUR 11,500 each, which fell due on 22 February 2016 and 31 March
2016, respectively.
6.
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
11,500 corresponding to the instalment that fell due on 31 March 2016.
7.
In this context, the DRC took particular note of the fact that, on 9 May 2016, the
Claimant put the Respondent in default of payment of the aforementioned
amount, setting a time limit expiring on 19 May 2016 in order to remedy the
default.
Player A, country B / Club C, country D
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8.
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).
9.
Subsequently, the members of 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 DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take
a decision upon the basis of the documents already on 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 termination
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant, inter alia, the amount of EUR 11,500 on 31 March 2016 the latest.
12.
Taking into account the documentation presented by the Claimant in support of
his petition, the Chamber concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the Chamber established that
the Respondent failed to remit the Claimant’s remuneration in the amount of EUR
11,500 corresponding to the second instalment outlined in the termination
agreement.
14.
In addition, the DRC 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 amount of EUR 11,500.
16.
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 11,500 as
from 1 April 2016 until the date of effective payment.
Player A, country B / Club C, country D
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17.
In continuation, taking into account the consideration under number II./14. 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 Regulations.
18.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. In this context, the
Chamber highlighted that on 18 May 2016 and on 26 May 2016 the Respondent
had already been found by the DRC judge and the DRC, respectively, to have
delayed a due payment for more than 30 days without a prima facie contractual
basis.
19.
Moreover, 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 occasions in the recent past.
20.
In continuation, the members of the Chamber noted that on the basis of these
circumstances, on 26 May 2016, the DRC decided that, should the Respondent fail
to pay the amount awarded to the creditor within 30 days of notification of the
relevant decision, a ban from registering any new players, either nationally or
internationally, would become effective on the Respondent for the next entire
registration period following the notification of said decision.
21.
The Chamber further took into account that, since the Respondent did not comply
with its obligation to pay the amount awarded to the creditor in accordance with
the aforementioned decision passed by the DRC on 26 May 2016, said ban from
registering any new players, either nationally or internationally, during one entire
registration period will indeed be effective as from the next registration period of
country D, i.e. starting in January 2017.
22.
Having said that, the Chamber established that, in the present matter, the
Respondent is found to have delayed a due payment for more than 30 days
without a prima facie contractual basis for the third time.
23.
Along these lines, 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.
Player A, country B / Club C, country D
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24.
Therefore, bearing in mind the 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 two entire registration
periods 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.
25.
In light of the consideration under number II./21. above, the Chamber determined
that, should the ban imposed on the Respondent in the present matter become
effective as of the January 2017 registration period of country D due to nonpayment within the time limit set, the two registration periods ban under number
II./24 above would partially run concurrently with the one registration period ban
previously imposed on the Respondent on 26 May 2016, the latter already being
effective as from the next registration period of country D, i.e. starting in January
2017.
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 EUR
11,500, plus interest at the rate of 5% p.a. as from 1 April 2016 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,
upon request, to the FIFA Disciplinary Committee for consideration and a formal
decision.
Player A, country B / Club C, country D
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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
of every payment received.
5.
In the event that the amount due to the Claimant is not paid by the Respondent
within 30 days as from the date of notification of this decision, the Respondent
shall be banned from registering any new players, either nationally or
internationally, for the two next entire and consecutive registration periods
following the notification of the present decision.
*****
Note relating to the motivated 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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