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 (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 29 January 2019, 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 (hereinafter: the contract) valid from 1 February 2019 until 30 October 2019.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant a monthly salary of USD 8,500.
3.
On 20 March 2019, the Claimant and the Respondent signed a termination agreement,
by means of which the employment contract was terminated by mutual consent of
the parties (hereinafter: the termination agreement).
4.
In accordance with the termination agreement, the Respondent undertook to pay to
the Claimant a total amount of USD 18,000, payable in as follows:
USD 4,500 to be paid by no later than 30 June 2019;
USD 4,500 to be paid by no later than 30 July 2019;
USD 4,500 to be paid by no later than 30 August 2019;
USD 4,500 to be paid by no later than 30 September 2019.
5.
According to clause 6 of the termination agreement, “in case of non-payment on the
dates indicated or simple delay in the payment of the same of any of the previous
instalments, the total debt will be understood completely expired and may be charged
immediately as if the term was overdue”.
6.
On 8 August 2019, the Claimant put the Respondent in default of payment of USD
18,000 setting a time limit expiring on 19 August 2019 in order to remedy the default.
7.
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 18,000,
corresponding to the total amount established in the termination agreement.
8.
In support of his claim, the Claimant argued that the Respondent failed to pay the
first instalment of the termination agreement. Consequently, in accordance clause 6
of the termination agreement, the Claimant stated that he is entitled to receive the
total amount established in said document i.e. USD 18,000.
9.
The Claimant further asked to be awarded interest of 5% p.a. as from the due date.
10.
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 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 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 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
October 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
October 2019), and considering that the present claim was lodged on 5 August 2019,
the June 2019 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 following the conclusion of an
employment contract on 29 January 2019, valid from 1 February 2019 until 30 October
2019, on 20 March 2019 the Claimant and the Respondent signed a termination
agreement by means of which the Respondent undertook to pay to the Claimant a
total amount of USD 18,000 as follows:
a. USD 4,500 to be paid by no later than 30 June 2019;
b. USD 4,500 to be paid by no later than 30 July 2019;
c. USD 4,500 to be paid by no later than 30 August 2019;
d. USD 4,500 to be paid by no later than 30 September 2019.
6.
In addition, the DRC judge observed that clause 6 of the termination agreement
stipulates that “in case of non-payment on the dates indicated or simple delay in the
payment of the same of any of the previous instalments, the total debt will be
Player A, Country B / Club C, Country D
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understood completely expired and may be charged immediately as if the term was
overdue”.
7.
Furthermore, the DRC judge took note that 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 USD 18,000 corresponding to total amount
established in the termination agreement.
8.
More specifically, the DRC judge observed that the Claimant explained that the
Respondent failed to pay the first instalment of the termination agreement and that
consequently, he is entitled to receive the total amount established in said document,
i.e. USD 18,000, in accordance clause 6 of the termination agreement.
9.
In this context, the DRC judge took particular note of the fact that, on 8 August 2019,
the Claimant put the Respondent in default of payment of the amount of USD 18,000
setting a time limit of 10 days 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).
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, 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.
13.
In this respect, the DRC judge recalled that, in accordance with the termination
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant the amount of USD 18,000 in 4 instalments with due dates between 30 June
2019 and 30 September 2019. Furthermore, the DRC judge observed that, in
accordance with the acceleration clause of the termination agreement (cf. clause 6 of
the termination agreement), all amounts fall due in case of non-payment in a timely
manner of any of the instalments
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.
Player A, Country B / Club C, Country D
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15.
On account of the aforementioned considerations, the DRC judge established that the
Respondent failed to remit to the Claimant the total amount of USD 18,000
corresponding to total amount established 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 USD 18,000.
18.
In addition, taking into consideration the Claimant’s request as well as the
acceleration clause provided for in clause 6 of the termination agreement, the DRC
judge decided to award the Claimant 5% interest p.a. on the amount of USD 18,000
as from 1 July 2019 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.
20.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Therefore, the DRC decided to
impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
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.
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 amounts due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present decision,
Player A, Country B / Club C, Country D
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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.
III.
Decis ion 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 the amount of USD 18,000 as
overdue payables, plus 5% interest p.a. as from 1 July 2019 until the date of effective
payment.
3.
A warning is imposed on the Respondent.
4.
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 amounts
mentioned under point III./2. above.
5.
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).
6.
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
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).
7.
The ban mentioned in point III./6. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
8.
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.
Player A, Country B / Club C, Country D
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*****
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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