DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 15 October 2019,
by Jon New m an (US A), 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.
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 for the
“season 2018.2019”. According to the information available on the Transfer Matching
System (TMS), the relevant season ran from June 2018 to May 2019.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant:
- an “advance payment” of EUR 100,000 payable on 20 August 2018; and
- a monthly remuneration of EUR 19,000 payable “at the last day of every month”
from August 2018 until May 2019.
3.
By correspondence dated 11 June 2019, the Claimant put the Respondent in default
of payment of EUR 68,500, corresponding to “overdue salaries”, setting a 10 days’
time limit in order to remedy the default.
4.
On 24 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 68,500 corresponding to the value of said overdue salaries. The Claimant
further asks to be awarded interest of 5% interest p.a. as from 31 May 2019.
5.
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 24 July 2019. 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
2019), he 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 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
2019), and considering that the present claim was lodged on 24 July 2019, the 2019
Player A, Country B / Club C, Country D
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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 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 it considered pertinent for the assessment of the matter
at hand. In particular, the DRC judge recalled that in accordance with art. 6 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 for the “season 2018.2019”, in accordance with
which the Claimant was entitled to receive from the Respondent, inter alia, an
advance payment of EUR 100,000 by no later than 20 August 2018 as well as a monthly
remuneration of EUR 19,000 payable at the last day of each month from August 2018
until May 2019. In this respect, the DRC judge noted that, according to the information
contained in TMS, the relevant sporting season ran from June 2018 until May 2019.
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 68,500
corresponding to “overdue salaries”, without specifying the exact months claimed.
7.
In this context, the DRC judge took particular note of the fact that, on 11 June 2019,
the Claimant put the Respondent in default of payment of EUR 68,500, setting a time
limit expiring on 21 June 2019 in order to remedy the default.
8.
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).
9.
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.
10.
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.
Player A, Country B / Club C, Country D
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11.
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.
12.
On account of the aforementioned considerations, the Chamber judge established
that the Respondent failed to remit to the Claimant the total amount of EUR 68,500.
13.
In addition, the DRC established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
14.
Consequently, the members of the Chamber 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 68,500.
15.
In this context and for the sake of good order, the DRC judge highlighted that in light
of the prerequisites set out in art. 12bis par. 3 of the Regulations, only the outstanding
amount of EUR 49,500 in connection with the Claimant’s claim relating to “overdue
salaries” is considered to fall within the scope of art. 12bis of the Regulations.
16.
In this respect, considering that the Claimant did not specify to which months the
overdue amounts pertained, the DRC judge considered that the amount of EUR 19,000
should be allocated to the month of May 2019. Consequently, the payment of said
amount had not been delayed for more than 30 days at the moment that the Claimant
sent his default notice on 11 June 2019. Consequently, the DRC judge decided that
said instalment does not fall within the scope of art. 12bis of the Regulations.
17.
In addition, taking into consideration the Claimant’s request, the members of the DRC
judge decided to award the Claimant 5% interest p.a. on the amount of EUR 68,500
as from 1 June 2019 until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./13. 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.
19.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. In this context, the DRC judge
highlighted that on several occasions within the past 2 years 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, on, 2 October 2019, a fine had been
imposed on the Respondent by the Dispute Resolution Chamber.
Player A, Country B / Club C, Country D
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20.
Moreover, the DRC judge 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.
21.
Bearing in mind the above and taking into account art. 12bis par. 5 of the Regulations,
according to which sanctions provided for in par. 4 of art. 12bis may be applied
cumulatively, the DRC judge decided to impose a warning as well as a proportionally
more severe fine on the Respondent in accordance with art. 12bis par. 4 lit. a) and lit.
c) of the Regulations, respectively. On account of the above, taking into account the
considerations under number II./15. and II./16. above as well as the overdue payables
amounting to EUR 49,500, the DRC judge regarded a fine amounting to CHF 11,250
as appropriate and hence decided to impose said fine on the Respondent.
22.
Furthermore, taking into account the consideration under number II./3. above, the
DRC judge 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.
23.
In this regard, the DRC judge 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.
24.
Therefore, bearing in mind the above, the DRC judge decided that, in the event that
the Respondent does not pay the amount 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.
25.
Finally, the DRC judge 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.
****
Player A, Country B / Club C, Country D
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III.
Decis ion of the DRC judge
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 68,500 as
overdue payables, plus 5% interest p.a. as from 1 June 2019 until the date of effective
payment.
3.
Any further claim lodged by the Claimant is rejected.
4.
A warning is imposed on the Respondent.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 11,250. The fine is to be paid w ithin 45 day s of notification of the present
decision, to FIFA to the following bank account with reference to case nr. XXXXXXX/XXX
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
6.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the postal 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 III./2. above.
7.
The Respondent shall provide evidence of payment of the due amount in accordance
with point III./2. above to FIFA to the e-mail address [email protected], duly translated
into one of the official FIFA languages (English, French, German, Spanish).
8.
In the event that the amount plus interest due in accordance with point III./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
Player A, Country B / Club C, Country D
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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).
9.
The ban mentioned in point III./8. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
10.
In the event that the aforementioned sum plus interest 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 decis ion (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
e-mail: [email protected]
www.tas-cas.org
For the DRC judge:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl: CAS directives
Player A, Country B / Club C, Country D
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