DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 7 October 2016,
by Philippe Diallo (France), 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 4 August 2015, the Player of Country B, Player A (hereinafter: the Claimant), and
the Club of Country D, Club C (hereinafter: the Respondent), signed an “agreement”
which reads as follows: “the following has been agreed and decided between the
Club C (…) and the Player A (…): both parties have signed a sporting contract lasting
ten months“ (note: free translation from Language E).
2.
In accordance with the agreement, the Respondent undertook to pay to the
Claimant inter alia ten monthly salaries of 30,000 as well as “travel tickets for his
family”.
3.
According to the information contained in the Transfer Matching System (TMS) the
parties concluded an employment contract valid from 16 July 2015 until 16 May 2016
which, just as the agreement does, provides for a monthly salary of 30,000 in favour
of the player.
4.
By correspondence dated 12 July 2016, the Claimant, after having previously done so
on 4 June 2016, put the Respondent in default of payment of 120,000 corresponding
to salaries of February, March, April and May 2016 setting a time limit expiring on 22
July 2016 in order to remedy the default.
5.
On 23 June 2016, and completed on 26 July 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 120,000 corresponding to salaries of
February, March, April and May 2016 and USD 300 corresponding to flight tickets.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
*****
II.
Considerations of the DRC judge
1.
First, 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
23 June 2016. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (2015 edition; hereinafter:
the 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 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 (2016
edition) he 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 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
(2016 edition), and considering that the present claim was lodged on 23 June 2016,
the 2016 edition of said regulations (hereinafter: the 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,
the DRC judge started by acknowledging all the aforementioned facts as well as the
arguments and the documentation on file. The DRC judge, however, 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. In particular, the DRC judge recalled that in accordance with art. 6
par. 3 of Annex 3 of the Regulations, FIFA may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence
generated or contained in the Transfer Matching System (TMS).
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent had signed an agreement on 4 August 2015 recognising the existence of
a valid employment contract for the period of ten months, in accordance with which
the Claimant was entitled to receive from the Respondent, inter alia, 30,000 per
month, as well as “travel tickets for his family”.
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
120,000 corresponding to salaries of February, March, April and May 2016 and USD
300 corresponding to flight tickets.
7.
In this context, the DRC judge took particular note of the fact that after having
previously done so, on 12 July 2016, the Claimant put the Respondent in default of
payment of 120,000, setting a time limit expiring on 22 July 2016 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
Player A, Country B / Club C, Country D
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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, in principle, 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. In continuation, the DRC
judge recalled that according to art. 6 par. 3 of Annex 3 of the Regulations, he may
use within the scope of proceedings pertaining to the application of the Regulations,
any documentation or evidence generated and contained in the Transfer Matching
System (TMS).
11.
Having said this, the DRC judge acknowledged that, in accordance with the
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant 30,000 per month for ten months as well as “travel tickets for his family”.
12.
Furthermore, taking into account the documentation presented by the Claimant in
support of his petition, the DRC judge concluded that the Claimant had not fully
substantiated his claim pertaining to overdue payables with pertinent documentary
evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no
supporting documentation relating to the Claimant’s claim pertaining to the costs of
the claimed flight tickets. Consequently, the DRC judge decided to reject this part of
the Claimant’s claim relating to flight tickets.
13.
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 120,000 corresponding to
monthly salaries for February, March, April and May 2016.
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 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 120,000.
16.
Moreover, the DRC judge decided that any further request filed by the Claimant is
rejected.
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
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.
18.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above
and 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 120,000, the DRC judge regarded a fine amounting to CHF 5,000 as
appropriate and hence decided to impose said fine on the Respondent.
19.
In this connection, 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 partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant overdue payables in the amount
of 120,000, within 30 days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limit and the present matter shall be submitted, upon
request, to the FIFA Disciplinary Committee for consideration and a formal decision.
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.
Player A, Country B / Club C, Country D
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6.
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:
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 DRC judge:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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