DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 18 November 2015,
by Theo van Seggelen (Netherlands), DRC judge,
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 31 January 2014, 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 31 January 2014 until 31 May 2015.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant remuneration of EUR 10,000 on a monthly basis.
3.
By correspondence dated 15 September 2015, the Claimant put the Respondent in
default of payment of the total amount of EUR 15,000, i.e. EUR 5,000 relating to the
balance of the April 2015 salary and EUR 10,000 for the May 2015 salary, setting a
time limit expiring on 25 September 2015 in order to remedy the default.
4.
On 29 September 2015, 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 15,000 corresponding to his salary for April 2015 (EUR 5,000) and
for May 2015 (EUR 10,000).
5.
The Claimant further asks to be awarded interest of 5% p.a. as of 1 May 2015 on the
amount of EUR 5,000 and as of 1 June 2015 on the amount of EUR 10,000.
6.
In reply to the claim, the Respondent pointed out that it had orally agreed with the
Claimant to terminate the contract without paying the outstanding balance and
emphasised that it wished to settle this matter amicably.
7.
Until the date of the present decision, no settlement agreement has been reached
between the parties, in spite of FIFA’s indication to inform the DRC administration of
any amicable settlement between the parties within 5 days of FIFA’s latest
correspondence of 11 November 2015.
II.
Considerations 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 29 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 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
2015) 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 2015), and considering that the present claim was lodged on 29 September
2015, the 2015 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, DRC judge acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 31 January 2014 until 31 May 2015, in
accordance with which the Claimant was entitled to receive from the Respondent
monthly remuneration of EUR 10,000.
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
15,000 corresponding to 50% of the April 2015 remuneration and the full instalment
of EUR 10,000 for May 2015.
7.
In this context, the DRC judge took particular note of the fact that, on 15 September
2015, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a time limit expiring on 25 September 2015 in
order to remedy the default.
Player A, Country B / Club C, Country D
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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,
refers to an alleged oral agreement with the Claimant and indicated that it wished
to settle the matter amicably.
10.
In this regard, the DRC judge highlighted that no amicable agreement had been
reached between the parties and considered that the argument raised by the
Respondent was not corroborated with any documentary evidence in accordance
with art. 12 par. 3 of the Procedural Rules.
11.
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 15,000 corresponding to 50% of the April 2015 salary in the amount of EUR
5,000 and the full May 2015 salary of EUR 10,000.
12.
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.
13.
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 15,000.
14.
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 each of the relevant
payments, as of the day following the day on which the relevant payments fell due,
until the date of effective payment.
15.
In continuation, taking into account the consideration under number II./12. 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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16.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent duly replied to the claim of the Claimant and in the absence of the
circumstance of repeated offence, the DRC judge decided to impose a warning on
the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
17.
In this respect, 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 15,000, plus
interest at the rate of 5% p.a. until the date of effective payment as follows:
a.
b.
5% p.a. on the amount of EUR 5,000 as from 1 May 2015;
5% p.a. on the amount of EUR 10,000 as from 1 June 2015.
3.
In the event that the amount due to the Claimant, plus interest, 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.
A warning is imposed on the Respondent.
Player A, Country B / Club C, Country D
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*****
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 DRC judge:
Marco Villiger
Acting Deputy Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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