DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 25 October 2018,
by Jon New m an (USA), DRC judge,
on the claim presented by the player,
Play er 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 cas e
1.
On 13 February 2017, the player of Country B, Player A (hereinafter: Claimant) and the
club of Country D, Club C (hereinafter: Respondent) signed an employment contract
valid as from 10 February 2017 until 30 June 2019.
2.
On 16 June 2017, the Claimant and the Respondent signed a termination agreement.
3.
In accordance with the termination agreement, the Respondent undertook to pay to the
Claimant inter alia the amount of EUR 3,500, payable in two instalments, i.e. EUR 1,500
to be paid until 30 October 2017 and EUR 2,000 to be paid until 28 December 2017.
4.
By correspondence dated 6 June 2018, the Claimant put the Respondent in default of
payment of EUR 3,500 setting a time limit expiring on 18 June 2018 in order to remedy
the default.
5.
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 3,500
corresponding to the first instalment in the amount of EUR 1,500 and second instalment
in the amount of EUR 2,000.
6.
The Claimant further asks to be awarded interest as follows:
5% p.a. on the amount of EUR 1,500 as from 31 October 2017;
5% p.a. on the amount of EUR 2,000 as from 28 December 2017.
7.
In spite of having been invited to do so, the Respondent has not replied to the claim
II.
Cons iderations 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
27 July 2018. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2018; 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 2018) he is
competent to deal with the matter at stake, which concerns an employment-related
Player A, Country B / Club C, Country D
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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 (edition 2018), and
considering that the present claim was lodged on 27 July 2018, the 2018 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.
5.
Having said this, the DRC judge acknowledged that the Claimant and the Respondent
signed an employment contract valid from 10 February 2017 until 30 June 2019.
6.
In continuation, the DRC judge recalled that on 16 June 2017, the Claimant and the
Respondent signed a termination agreement.
7.
The DRC judge highlighted that, in accordance with the termination agreement, the
Respondent undertook to pay to the Claimant the amount of EUR 3,500, in two
instalments, i.e. EUR 1,500 to be paid until 30 October 2017 and EUR 2,000 to be paid
until 28 December 2017.
8.
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 EUR 3,500
corresponding to the first instalment in the amount of EUR 1,500 and the second
instalment in the amount of EUR 2,000 as stipulated in the termination agreement.
9.
In this context, the DRC judge took particular note of the fact that, on 6 June 2018, the
Claimant put the Respondent in default of payment of the aforementioned amounts,
setting a time limit expiring on 18 June 2018 in order to remedy the default.
10.
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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11.
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.
12.
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.
13.
Having said this, the DRC judge acknowledged that, in accordance with the termination
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant EUR 3,500.
14.
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.
15.
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 EUR
3,500 corresponding to the first instalment in the amount of EUR 1,500 and second
instalment in the amount of EUR 2,000 as stipulated in the termination agreement.
16.
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.
17.
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 EUR 3,500.
18.
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 EUR 1,500 as from 31 October 2017
and 5% p.a. on the amount of EUR 2,000 as from 29 December 2017 until the date of
effective payment.
19.
In continuation, taking into account the consideration under number II./16. 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.
Player A, Country B / Club C, Country D
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20.
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 EUR
3,500, the DRC judge regarded a fine amounting to CHF 1,000 as appropriate and hence
decided to impose said fine on the Respondent.
21.
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 EUR 3,500, 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 1,500 as from 31 October 2017;
b. 5% p.a. on the amount of 2,000 as from 29 December 2017.
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.
5.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 1,000. The fine is to be paid w ithin 30 day s of notification of the present decision
to FIFA to the following bank account with reference to case nr. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
Player A, Country B / Club C, Country D
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*****
Note relating to the m otiv ated 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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