DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 17 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 4 September 2014, the player from country B, Player A (hereinafter: Claimant)
and the club from country D, Club C (hereinafter: Respondent) concluded an
employment contract (hereinafter: contract) valid for the sporting season
2014/2015.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant
USD 150,000 via three payments, as follows: USD 75,000 upon signature of the
contract, USD 40,000 at the end of the first leg of the league and USD 35,000 at the
end of the second leg of the league.
3.
By correspondence dated 1 June 2016, the Claimant put the Respondent in default
of payment of USD 150,000 setting a 10 days’ time limit in order to remedy the
default.
4.
On 3 August 2016, completed on 17 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 USD 150,000 corresponding to his
entire contractual remuneration.
5.
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 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 3 August
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 members of 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), 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.
Player A, country B / Club C, country D
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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 3 August 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 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 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 Chamber acknowledged that, on 4 September
2014, the Claimant and the Respondent entered into a contract valid for the
sporting season 2014/2015.
6.
The Chamber further acknowledged that pursuant to said contract, the Respondent
undertook to pay to the Claimant USD 150,000 as follows: USD 75,000 upon
signature of the contract, USD 40,000 at the end of the first leg of the league and
USD 35,000 at the end of the second leg of the league.
7.
Furthermore, the DRC took note that 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 USD 150,000, which corresponds to the entire
remuneration of the Claimant established in the contract.
8.
In this context, the members of the DRC took particular note of the fact that, on 1
June 2016, the Claimant put the Respondent in default of payment of the
aforementioned amount setting a time limit of 10 days in order to remedy the
default.
9.
Consequently, the DRC 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 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.
Player A, country B / Club C, country D
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11.
Furthermore, as a consequence of the aforementioned consideration, the members
of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural
Rules, they shall take a decision upon the basis of the documents on file, in other
words, upon the statements and documents presented by the Claimant.
12.
Having said this, the DRC acknowledged that, in accordance with the contract
signed by and between the parties, the Respondent was obliged to pay to the
Claimant the amount of USD 150,000 by the end of the sporting season 2014/2015.
13.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
14.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of USD
150,000 in accordance with the contract concluded between the parties.
15.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
16.
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 USD 150,000.
17.
In continuation, taking into account the consideration under number II./15. above,
the DRC 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 the aforementioned article, it has
competence to impose sanctions on the Respondent. In this context, the members of
the Chamber highlighted that on 13 January 2016 and 12 April 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, on 12 April 2016, without the
Respondent having responded to the relevant claim, as a result of which a fine was
imposed on the Respondent by the Dispute Resolution Chamber. Consequently, the
Chamber established that, for the third time, the Respondent has delayed a due
payment for more than 30 days without a prima facie contractual basis.
19.
In this context, 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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20.
Bearing in mind the considerations under numbers II./18. and II./19. 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 entire registration period 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.
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 USD 150,000.
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.
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.
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
Player A, country B / Club C, country D
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the next entire registration period 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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