DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 26 October 2016,
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 16 January 2014, 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 15 January 2017.
2.
On 15 July 2014, the Claimant and the Respondent signed a termination agreement,
by means of which the parties terminated the employment contract with immediate
effect. In accordance with the termination agreement, the Respondent undertook to
pay to the Claimant the total amount of EUR 1,500,000 in two instalments: EUR
1,000,000 until 30 July 2014 and EUR 500,000 on 31 December 2014.
3.
On 12 November 2015, the Claimant and the Respondent signed a settlement
agreement.
4.
In accordance with the settlement agreement, the Respondent undertook to pay to
the Claimant the outstanding amount of EUR 500,000 regarding the termination
agreement in 5 instalments of EUR 100,000 each, respectively on 31 January 2016, 29
February 2016, 31 March 2016, 30 April 2016 and 31 May 2016.
5.
By correspondence dated 21 July 2016, the Claimant put the Respondent in default
of payment of the amount of EUR 400,000 regarding the settlement agreement
setting a 10 days’ time limit in order to remedy the default.
6.
On 17 June 2016, and completed on 9 August 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 400,000 corresponding to the
last four instalments in accordance with the settlement agreement.
7.
The Claimant further asks to be awarded interest of 5% as from 31 May 2016 and
that the Respondent be ordered to pay legal and procedural costs.
8.
In reply to the claim, the Respondent sent a document related to a payment, dated 7
April 2016, to the benefit of the Claimant in the amount of EUR 100,000.
9.
The Claimant insisted on his claim, stating that such amount was paid on 7 April
2016 and, thus, before the present claim was lodged and that the amount of EUR
400,000 is still outstanding. Moreover, the Claimant affirmed that the Respondent is
only trying to delay the payment of the outstanding remuneration.
II.
Considerations of the Dispute Resolution Chamber
Player A, country B / Club C, country D
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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 17 June 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).
2.
Subsequently, the DRC 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) the
Dispute Resolution Chamber is competent to deal with the matter at stake, which
concerns an employment-related dispute with an international dimension between
an 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 par. 2 of the Regulations on the Status and Transfer of Players (edition
2016), and considering that the present claim was lodged on 17 June 2016, the 2016
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 DRC 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 on file. However, the DRC 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 DRC acknowledged that the Claimant and the
Respondent signed an employment contract valid from 16 January 2014 until 15
January 2017 and subsequently, on 15 July 2014, a termination agreement. By means
of the termination agreement, the Claimant and the Respondent terminated the
employment contract with immediate effect and the Respondent undertook to pay
to the Claimant the amount of EUR 1,500,000 divided in two instalments.
6.
Moreover, the Chamber took note that, on 12 November 2015, the Claimant and the
Respondent signed a settlement agreement, in accordance with which the
Respondent undertook to pay the Claimant the outstanding amount of EUR 500,000
regarding the termination agreement in 5 equal instalments of EUR 100,000 each,
payable, respectively, on 31 January 2016, 29 February 2016, 31 March 2016, 30 April
2016 and 31 May 2016.
Player A, country B / Club C, country D
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7.
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
400,000 corresponding to the four last instalments established in the settlement
agreement.
8.
In this context, the DRC took particular note of the fact that, on 21 July 2016, the
Claimant put the Respondent in default of payment of the aforementioned amount,
setting a 10 days’ time limit in order to remedy the default.
9.
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).
10.
Subsequently, the members of the DRC took into account that the Respondent, in
reaction to the claim, did not raise any argument, but merely submitted a document
related to a payment in the amount of EUR 100,000 apparently made to the
Claimant on 7 April 2016.
11.
In addition, the Chamber took note that the Claimant insisted on his claim,
highlighting that the payment document in the amount of EUR 100,000 submitted
by the Respondent corresponded to a payment made by the Respondent on 7 April
2016 and, thus, before the claim was lodged. The Claimant held that the amount of
EUR 400,000 is still outstanding.
12.
Having said this, the DRC pointed out that, in accordance with the settlement
agreement at the basis of the claim, the Respondent was obliged to pay to the
Claimant the amount of EUR 500,000 in five instalments, whereas the Respondent
submitted proof of 1 payment in the amount of EUR 100,000, which amount was
acknowledged as received by the Claimant and excluded from the amount claimed
as outstanding by the Claimant on the basis of the settlement agreement.
13.
Furthermore, the DRC took into account that the Respondent failed to raise any
argument or reason for the non-payment of the remainder of EUR 400,000 claimed
by the Claimant.
14.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to pay in full the amount established in the settlement
agreement, in particular, four instalments of the settlement agreement in the
amount of EUR 100,000 each.
Player A, country B / Club C, country D
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15.
In conclusion, the DRC determined that the Respondent failed to remit the
Claimant’s remuneration in the amount of EUR 400,000 in accordance with the
settlement agreement.
16.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
17.
Consequently, the Chamber 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 400,000.
18.
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 300,000 as from
31 May 2016, as requested, and on the amount of EUR 100,000 as of the day
following the day on which the relevant payment fell due, i.e. 1 June 2016, until the
date of effective payment.
19.
Furthermore, as regards the claimed legal expenses and procedural costs, the
Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the DRC, in accordance with which
no procedural compensation shall be awarded in proceedings in front of the Dispute
Resolution Chamber. Consequently, the Dispute Resolution Chamber decided to
reject the Claimant’s request relating to legal expenses. Furthermore, in this context,
the members of the DRC highlighted that according to art. 18 par. 2 of the
Procedural Rules, DRC proceedings relating to employment-related disputes
between a club and a player of an international dimension are free of charge.
20.
In continuation, taking into account the consideration under number II./16. 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.
21.
The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. In this context, the Dispute
Resolution Chamber highlighted that, on 27 April 2016 and on 26 May 2016, the
Respondent had already been found to have delayed a due payment for more than
30 days without a prima facie contractual basis and with the Respondent having
responded to the relevant claims, as a result of which a warning and a reprimand,
respectively, had been imposed on the Respondent by the Single judge of the
Players’ Status Committee.
Player A, country B / Club C, country D
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22.
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.
23.
Bearing in mind that the Respondent has replied to the claim of the Claimant as well
as the considerations under numbers II./21. and II./22. above, the Chamber 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 EUR
400,000, the DRC regarded a fine amounting to CHF 20,000 as appropriate and
hence decided to impose said fine on the Respondent.
III.
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 400,000
plus interest at the rate of 5% p.a. until the date of effective payment as follows:
a. 5% p.a. on the amount of EUR 300,000 as from 31 May 2016;
b. 5% p.a. on the amount of EUR 100,000 as from 1 June 2016.
3.
In the event that the amount due to the Claimant, plus interest, 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.
Any further claim lodged 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 Dispute
Resolution Chamber of every payment received.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 20,000. The fine is to be paid within 30 days of notification of the present
Player A, country B / Club C, country D
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decision to FIFA to the following bank account with reference to case
nr. XXXX:
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 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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