DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 2 October 2019,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (USA), member
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 10 May 2016, 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 as from the date of signature until 31 May 2019.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant, inter alia, EUR 50,000 per month “from September 2018 to June 2019”.
3.
On an unspecified date, the Claimant and the Respondent signed an “Agreement”,
which, inter alia, stipulated the following: “This extension contract will be valid if the
[Respondent] gets right to attend to the League E for the season 2019-2020. If the
[Respondent] cannot get the right to be in the League E at the end of the season
2018-2019 and continue to attend to be in 1st Division of Country D, then the
[Respondent] will pay to the player total amount of [EUR 200,000] until the end of
September 2019. And player will be free to sign with any other clubs he want”.
4.
By correspondence dated 18 April 2019, the Claimant put the Respondent in default
of payment of EUR 150,000, setting a time limit expiring on 2 May 2019 in order to
remedy the default.
5.
By email dated 30 April 2019, the Respondent asked the Claimant to provide until 14
May 2019 to pay the amount of EUR 150,000.
6.
On 8 July 2019, 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 300,000, corresponding to the instalments of EUR 50,000 each for the
months as from January 2019 until June 2019.
7.
Furthermore, the player requested “to remind” the Respondent that it has “to pay
[…] amount of EUR 200,000 […] until the end of September 2019 risen from the
additional agreement”.
8.
In spite of having been invited to do so, the Respondent has not replied to the claim.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the Dis pute Res olution Cham ber
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 8 July 2019. Consequently,
the 2018 edition of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
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 2 in conjunction with art. 22 lit.
b of the Regulations on the Status and Transfer of Players (edition 2019), it 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 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
2019) and considering that the present claim was lodged on 8 July 2019, the June
2019 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
4.
Having said this, the Chamber acknowledged that the Claimant and the Respondent
signed an employment contract valid between 10 May 2016 and 31 May 2019, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, a monthly salary of EUR 50,000 “from September 2018 to June 2019”.
5.
Moreover, the DRC took note that, on an unspecified date, the parties signed an
agreement, pursuant to which “This extension contract will be valid if the
[Respondent] gets right to attend to the League E for the season 2019-2020. If the
[Respondent] cannot get the right to be in the League E at the end of the season
2018-2019 and continue to attend to be in 1st Division of Country D, then the
[Respondent] will pay to the player total amount of [EUR 200,000] until the end of
September 2019. And player will be free to sign with any other clubs he want”.
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 EUR
300,000, corresponding to the installments of EUR 50,000 each for the months
between January and June 2019.
Player A, Country B / Club C, Country D
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7.
In this context, the DRC took particular note of the fact that, on 18 April 2019, the
Claimant put the Respondent in default of payment of EUR 150,000, setting a time
limit expiring on 2 May 2019 in order to remedy the default.
8.
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).
9.
Subsequently, the Chamber took into account that the Respondent, for its part, failed
to present its response to the claim of the Claimant, despite having been invited to
do so. In this way, so the Chamber deemed, the Respondent renounced its right to
defence and, thus, accepted the allegations of the Claimant.
10.
Moreover, and as a consequence of the aforementioned consideration, the Chamber
established 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.
11.
On account of the above, the DRC established that the Respondent failed to remit
the player’s remuneration, in the total amounts of EUR 300,000, corresponding to
the outstanding salaries for the period between January and June 2019.
12.
In addition, bearing in mind the considerations under numbers II./7. and II./8. above,
the DRC established that the Respondent had delayed a due payment for more than
30 days without a prima facie contractual basis.
13.
Consequently, the Chamber decided that, in accordance with the general legal
principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant the
total amount of EUR 300,000.
14.
In this context and for the sake of good order, the DRC highlighted that, in light of
the prerequisites set out in art. 12bis par. 3 of the Regulations, only the outstanding
amount of EUR 100,000 in connection with Claimant’s claim relating to the unpaid
salaries for the period between January and June 2019 is considered to fall within
the scope of art. 12bis of the Regulations.
15.
Moreover, concerning the Claimant’s request “to remind” the Respondent that it has
“to pay […] amount of EUR 200,000 […] until the end of September 2019 risen from
the additional agreement”, the Chamber observed that such request is premature,
given that the above-mentioned amount is not yet due and is conditional.
Player A, Country B / Club C, Country D
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16.
In continuation, taking into account the consideration under number II./13. 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.
17.
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 DRC
highlighted that, on 19 November 2018 and 20 February 2019, the Respondent had
already been found to have delayed a due payment for more than 30 days without a
prima facie contractual basis, as a result of which a warning and a reprimand had
been imposed on the Respondent by the DRC.
18.
Bearing in mind the above, the Chamber regarded a fine amounting to CHF 15,000
as appropriate and hence decided to impose said fine on the Respondent.
19.
Moreover, 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 a more severe penalty.
20.
The DRC concluded its deliberations in the present matter by establishing that any
further claim lodged by the Claimant is rejected.
21.
Furthermore, taking into account the consideration under number II./3. above, the
DRC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that,
with its decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts of
outstanding remuneration and/or compensation in due time.
22.
In this regard, the DRC pointed out that, against clubs, the consequence of the failure
to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid
and for the maximum duration of three entire and consecutive registration periods.
23.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
communicates the relevant bank details to the Respondent, a ban from registering
any new players, either nationally or internationally, for the maximum duration of
three entire and consecutive registration periods shall become effective on the
Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
Player A, Country B / Club C, Country D
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24.
Finally, the DRC recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance
with art. 24bis par. 3 of the Regulations.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 300,000.
3.
The Respondent is ordered to pay a fine in the amount of
CHF 15,000. 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
4.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the e-mail address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the amount
mentioned under point 2. above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance
with point 2. above to FIFA to the e-mail address [email protected], duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount due in accordance with point 2. above is not paid by
the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, the Respondent shall be banned from
registering any new players, either nationally or internationally, up until the due
amount is paid and for the maximum duration of three entire and consecutive
registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of
Players).
8.
The ban mentioned in point 7. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
Player A, Country B / Club C, Country D
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9.
In the event that the aforementioned sum is still not paid by the end of the ban of
three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a
formal decision.
*****
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 Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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