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 7 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 employment
contract valid from 16 September 2015 until 16 May 2016.
2.
In accordance with the employment contract, the Respondent inter alia undertook
to pay to the Claimant USD 8,125 at the end of each month. The contract further
provides for “tickets for his family”.
3.
By correspondence dated 12 July 2016, the Claimant after having previously done so
on 4 June 2016, put the Respondent in default of payment for the second time of
salaries due between October 2015 and May 2016 in the total amount of USD 65,000
setting a time limit expiring on 22 July 2016 in order to remedy the default.
4.
On 24 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 USD 65,000 corresponding to salaries
due between October 2015 and May 2016 as well as USD 300 corresponding to flight
tickets.
5.
In spite of having been invited to do so by 19 August 2016 at the latest, the
Respondent only replied to the claim on 10 September 2016.
*****
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
24 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 24 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.
5.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent had signed an employment contract valid from 16 September 2015 until
16 May 2016, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, a monthly salary of USD 8,125 as well as “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 USD
65,000 corresponding to salaries allegedly owed between October 2015 and May
2016 as well as USD 300 corresponding to flight tickets.
7.
In this context, the DRC judge took particular note of the fact that on 12 July 2016,
the Claimant put the Respondent in default of payment for the second time of USD
65,000 corresponding to allegedly unpaid salaries owed between October 2015 and
May 2016, 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
granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
Player A, Country B / Club C, Country D
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9.
Subsequently, the DRC judge observed that the Respondent, for its part, in spite of
having been invited to do so, had failed to present its response to the claim of the
Claimant within the relevant time-limit set by the FIFA administration, i.e. 19 August
2016. In fact, the reply of the Respondent was only received on 10 September 2016.
As a result, in line with the strict application of art. 9 par. 3 of the Procedural Rules,
the DRC judge decided not to take into account the late reply of the Respondent
and established that, in accordance with the aforementioned provision, he shall take
a decision on the basis of those documents on file that were provided prior to the
deadline set by the FIFA administration, in casu, on the statements and documents
presented by the Claimant.
10.
Having said this, the DRC judge acknowledged that in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant a monthly salary of USD 8,125 as well as “flight tickets for his
family”.
11.
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 no
supporting documentation relating to the Claimant’s claim pertaining to the cost of
the claimed flight tickets. Consequently, the DRC judge decided to reject this part of
the Claimant’s claim relating to flight tickets.
12.
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 USD 65,000 corresponding
to salaries due between October 2015 and May 2016.
13.
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.
14.
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 USD 65,000.
15.
Moreover, the DRC judge decided that any further request filed by the Claimant is
rejected.
16.
In continuation, taking into account the consideration under number II.13 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
Player A, Country B / Club C, Country D
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facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
17.
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
within the established time-limit set by the FIFA administration, 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
USD 65,000, the DRC judge regarded a fine amounting to CHF 7,500 as appropriate
and hence decided to impose said fine on the Respondent.
18.
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 USD 65,000, 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 7,500. 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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