DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 13 October 2016,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Wouter Lambrecht (Belgium), 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 8 August 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 signature date until 31 May 2016.
2.
On 16 July 2015, the parties signed an “agreement for amendments” by means of
which the financial terms of the employment contract for the 2015-16 season
were amended (hereinafter: amendment agreement).
3.
In accordance with the amendment agreement, the Respondent undertook to pay
to the Claimant inter alia a monthly salary of EUR 13,000 as from 31 August 2015
until 31 May 2016 as well as the amount of EUR 25,000 on 31 January 2016.
4.
On 20 July 2016, the Claimant put the Respondent in default of payment of inter
alia the amount of EUR 77,000 setting a time limit expiring on 31 July 2016 in
order to remedy the default.
5.
On 15 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 77,000 corresponding to the instalment of EUR 25,000 that fell
due on 31 January 2016 and 4 monthly salaries as from February until May 2016 in
accordance with the amendment agreement.
6.
The player further asks to be awarded interest of 5% p.a. as of the relevant due
dates and that the club bears all costs relating to the proceedings.
7.
In spite of having been invited to do so, the club has not replied to the claim.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter: 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 15 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).
Player A, country B / Club C, country D
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2.
Subsequently, 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), it 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 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 15 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 and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation on file. However, the Chamber 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 DRC acknowledged that, on 8 August 2014, the Claimant and
the Respondent signed an employment contract valid as from the signature date
until 31 May 2016. The Chamber further noted that the parties signed an
amendment agreement on 16 July 2015, in accordance with which the financial
terms of the employment contract for the 2015-16 season were amended. In this
respect, the Chamber took into account that in accordance with the amendment
agreement the Claimant was entitled to receive from the Respondent inter alia a
monthly salary of EUR 13,000 as from 31 August 2015 until 31 May 2016 as well as
the amount of EUR 25,000 on 31 January 2016.
6.
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 EUR
77,000 corresponding to the instalment of EUR 25,000 that fell due on 31 January
2016 and 4 monthly salaries totalling EUR 52,000 relating to salaries as from
February 2016 until May 2016.
7.
In this context, the DRC took particular note of the fact that, on 20 July 2016, the
Claimant put the Respondent in default of payment of the aforementioned
amount, setting a time limit expiring on 31 July 2016 in order to remedy the
default.
Player A, country B / Club C, country D
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8.
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).
9.
Subsequently, the members of 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.
10.
Furthermore, as a consequence of the aforementioned consideration, the DRC
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.
11.
Having said this, the DRC acknowledged that, in accordance with the amendment
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant, inter alia, a monthly salary of EUR 13,000 as from 31 August 2015 until
31 May 2016 as well as the amount of EUR 25,000 on 31 January 2016.
12.
Taking into account the documentation presented by the Claimant in support of
his petition, the Chamber concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the Chamber established that
the Respondent failed to remit the Claimant’s remuneration in the amount of EUR
77,000 corresponding to the instalment of EUR 25,000 that fell due on 31 January
2016 and four monthly salaries of EUR 13,000 each relating to February 2016 until
May 2016.
14.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
15.
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 amount of EUR 77,000.
16.
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 each of the instalments included
Player A, country B / Club C, country D
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in the total amount of EUR 77,000 as of the day following the day on which the
relevant payment(s) fell due, until the date of effective payment.
17.
Subsequently, the Dispute Resolution Chamber decided to reject the Claimant’s
claim pertaining to procedural costs in accordance with art. 18 par. 4 of the
Procedural Rules and the Chamber’s respective longstanding jurisprudence in this
regard.
18.
In continuation, taking into account the consideration under number II./14. 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.
19.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it
has competence to impose sanctions on the Respondent. In this context, the
Chamber highlighted that on 18 November 2015, on 26 November 2015, and on
13 September 2016 the Respondent had already been found by the DRC judge
and the DRC to have delayed a due payment for more than 30 days without a
prima facie contractual basis.
20.
Moreover, the members of the Chamber wished to underline and took into
account that the Respondent had been found by the Dispute Resolution Chamber
and/or the DRC judge responsible for not complying with its financial obligations
towards players on various occasions in the recent past.
21.
In continuation, the members of the Chamber noted that on the basis of these
circumstances, on 13 September 2016, the DRC decided that, should the
Respondent fail to pay the amount awarded to the creditor within 30 days of
notification of the relevant decision, a ban from registering any new players,
either nationally or internationally, would become effective on the Respondent
for the next two entire registration periods following the notification of said
decision.
22.
Having said that, the Chamber established that, in the present matter, the
Respondent is found to have delayed a due payment for more than 30 days
without a prima facie contractual basis for the fourth time.
23.
Along these lines, 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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24.
Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis
paras 7 and 8 of the Regulations, the DRC decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for
one entire registration period. The execution of this registration ban is suspended
during a probation period of one year following the notification of the present
decision. If the Respondent commits another infringement during the one year
probationary period, the suspension is automatically revoked and the registration
ban executed.
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
77,000, 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 25,000 as from 1 February 2016;
b. 5% p.a. on the amount of EUR 13,000 as from 1 March 2016;
c. 5% p.a. on the amount of EUR 13,000 as from 1 April 2016;
d. 5% p.a. on the amount of EUR 13,000 as from 1 May 2016;
e. 5% p.a. on the amount of EUR 13,000 as from 1 June 2016.
3.
In the event that the amount plus interest 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.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
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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
of every payment received.
6.
The Respondent shall be banned from registering any new players, either
nationally or internationally, for one entire registration period. The execution of
this registration ban is suspended during a probation period of one year
following the notification of the present decision. If the Respondent commits
another infringement during the probationary period, the suspension is
automatically revoked and the registration ban executed.
*****
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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