DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 17 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 23 July 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 the end of the 2015/2016 season.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a total remuneration of USD 150,000, payable as follows:
“An amount of 35% of the contract (USD 52,500) will be paid to the player to
date 26 July 2015”;
“An amount of 20% of the contract (USD 30,000) will be paid to the player to
date half season”;
“An amount of 25% of the contract (USD 37,500) will be paid to the player to
date in 24th week;
“An amount of 20% of the contract (USD 30,000) will be paid to the player to
date before end of the season.
3.
Moreover, in accordance with the employment contract, the Respondent undertook
to pay to the Claimant a bonus payment of USD 20,000, if he participated in 60% of
the games.
4.
By correspondence dated 30 June 2016 and 12 July 2016, the Claimant put the
Respondent in default of payment of USD 87,500, setting a 10 days’ time limit in
order to remedy the default.
5.
On 5 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 87,500, corresponding to outstanding salary and the bonus payment.
6.
The Claimant explained that in accordance with the contract, he was supposed to
receive a total salary remuneration of USD 150,000, plus a bonus payment of USD
20,000 in case he participated in more than 60% of the Respondent’s matches. In this
respect, the Claimant sustained that he participated in 90% of the Respondent’s
matches during the relevant season and provided documentation to support his
allegation.
Player A, country B / Club C, country D
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7.
Furthermore, the Claimant held that he only received USD 82,500 from the
Respondent, therefore, according to the Claimant, the Respondent still owes him the
total amount of USD 87,500.
8.
The Claimant further asks to be awarded interest of 5% p.a. until the date of
effective payment.
9.
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 of all, 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 5 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 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 (edition
2016) he 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 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
(edition 2016), and considering that the present claim was lodged on 5 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 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 above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge 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
Player A, country B / Club C, country D
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par. 3 of Annexe 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 signed an employment contract valid as from 23 July 2015 until the end
of the 2015/2016 season, which according to the information in the TMS, ended on
20 May 2016. Furthermore, the DRC judge acknowledged that in accordance with
the employment contract, the Claimant was entitled to receive from the Respondent,
inter alia, a total remuneration of USD 150,000, payable as follows:
“An amount of 35% of the contract (USD 52,500) will be paid to the player to
date 26 July 2015”;
“An amount of 20% of the contract (USD 30,000) will be paid to the player to
date half season”;
“An amount of 25% of the contract (USD 37,500) will be paid to the player to
date in 24th week;
“An amount of 20% of the contract (USD 30,000) will be paid to the player to
date before end of the season.
6.
Moreover, the DRC judge observed that the Claimant lodged a claim against the
Respondent in front of FIFA on 5 August 2016, maintaining that the Respondent has
overdue payables towards him in the total amount of USD 87,500, corresponding to
outstanding salary and bonus payment.
7.
In this respect, the DRC judge noticed that the Claimant explained that in
accordance with the contract, he was supposed to receive a total salary
remuneration of USD 150,000, plus a bonus payment of USD 20,000 in case he
participated in more than 60% of the Respondent’s matches, and that he held that
as he only received USD 82,500 from the Respondent, the Respondent still owes him
the total amount of USD 87,500. Furthermore, the DRC judge observed that the
Claimant sustained that he participated in 90% of the Respondent’s matches during
the relevant season and provided documentation in this respect to support his
allegation.
8.
In this context, the DRC judge took particular note of the fact that, on 30 June 2016
and on 12 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.
Player A, country B / Club C, country D
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9.
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).
10.
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 accepted the allegations of the Claimant.
11.
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 already on file, in other words, upon the
statements and documents presented by the Claimant.
12.
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 total remuneration of USD 150,000.
13.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge 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 judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of
USD 87,500 corresponding to outstanding salary and the bonus payment established
in the employment contract.
15.
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.
16.
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 87,500.
17.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD
87,500 as from 5 August 2016 until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./15. above,
the DRC judge referred to art.12bis par. 2 of the Regulations which stipulates that
Player A, country B / Club C, country D
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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.
19.
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 USD 87,500, the DRC judge regarded a fine amounting to CHF 10,000
as appropriate and hence decided to impose said fine on the Respondent.
20.
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 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 87,500, plus
interest at the rate of 5% p.a. as from 5 August 2016 until the date of effective
payment.
3.
In the event that the amount 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.
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 judge
of every payment received.
Player A, country B / Club C, country D
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5.
The Respondent is ordered to pay a fine in the amount of
CHF 10,000. The fine is to be paid within 30 days of notification of the present
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 DRC judge:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
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