DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 6 November 2015,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Theo van Seggelen (Netherlands), 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 16 May 2014, 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 1 July 2014 until 30 June 2015.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant the total amount of USD 240,000 as well as various bonuses.
3.
On 22 May 2015, the Respondent confirmed in writing that it still owed the Claimant
the total amount of USD 101,000.
4.
By correspondence dated 18 September 2015, the Claimant put the Respondent in
default of payment of the amount of USD 111,400 setting a time limit of ten days in
order to remedy the default.
5.
On 7 September 2015, and completed on 29 September 2015, the Claimant lodged a
claim against the Respondent in front of FIFA requesting that the Respondent be
ordered to pay to him overdue payables in the amount of USD 111,400 as
outstanding remuneration consisting of the salaries of February 2015 to June 2015
and USD 34,000 in bonuses.
6.
The Claimant further asked to be awarded interest of 5% as from 20 March 2015.
7.
In reply to the claim, the Respondent stated that it had no specific objections to the
claim, whilst indicating that it was facing financial difficulties.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also 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 7 September 2015.
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 DRC 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 2015), 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
2015), and reiterating that the present claim was lodged on 7 September 2015, the
2015 edition of said regulations (hereinafter: the 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 the Claimant and the Respondent
signed an employment contract valid as from 1 July 2014 until 30 June 2015, in
accordance with which the Claimant was entitled to receive from the Respondent,
inter alia, the amount of USD 240,000 in salaries as well as various bonuses.
6.
In continuation, the Chamber noted 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 111,400 corresponding to his salaries from
February to June 2015 (USD 77,400) and various bonuses (USD 34,000).
7.
In this context, the DRC took particular note of the fact that, on 18 September 2015,
the Claimant put the Respondent in default of payment of the aforementioned
amount of USD 111,400, setting a time limit of ten days 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).
Player A, Country B / Club C, Country D
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9.
Subsequently, the DRC took note that the Respondent, for its part, held that it was
facing financial difficulties.
10.
In this regard, the DRC considered that the arguments raised by the Respondent
cannot be considered a valid reason for the non-payment of the monies claimed by
the Claimant, in order words, the reasons brought forward by the Respondent in its
defence do not exempt the Respondent from its obligation to fulfil its contractual
obligations towards the Claimant.
11.
Consequently, the DRC decided to reject the argumentation put forward by the
Respondent in its defence.
12.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of USD
111,400.
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 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 total amount of USD 111,400.
15.
Moreover, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the Chamber decided that the Respondent must
pay to the Claimant interest of 5% p.a. on each of the relevant payment(s) as of the
day following the day on which the relevant payment(s) fell due, until the date of
effective payment.
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.
Furthermore, the DRC established that by virtue of art. 12bis par. 4 of the
Regulations it has competence to impose sanctions on the Respondent. Moreover,
the DRC recalled that the Respondent has previously been found by the DRC to have
neglected its contractual obligations towards player. Therefore, the DRC 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 USD
Player A, Country B / Club C, Country D
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111,400, the DRC regarded a fine amounting to CHF 15,000 as appropriate and
hence decided to impose said fine on the Respondent.
18.
Finally, the DRC 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 Dispute Resolution Chamber
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 USD 111,400,
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 USD 8,600 as from 20 March 2015;
b. 5% p.a. on the amount of USD 17,200 as from 1 April 2015;
c. 5% p.a. on the amount of USD 17,200 as from 1 May 2015;
d. 5% p.a. on the amount of USD 17,200 as from 1 June 2015;
e. 5% p.a. on the amount of USD 17,200 as from 1 July 2015;
f. 5% p.a. on the amount of USD 34,000 as from 1 July 2015.
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 of
every payment received.
Player A, Country B / Club C, Country D
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5.
The Respondent is ordered to pay a fine in the amount of
CHF 15,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the motivated decision (legal remedy):
According to article 67 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:
Markus Kattner
Acting Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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