DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 24 November 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Diallo (France), member
Takuya Yamazaki (Japan), 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
Facts related to the competence:
1.
On 22 September 2014, the player from country B, Player A (hereinafter: Claimant)
and club from country D, Club C (hereinafter: Respondent), signed an employment
contract and a “schedule” (hereinafter: the contract) valid from the date of
signature until 30 June 2015.
2.
Art. 19 of the contract reads:
“19 DISPUTE RESOLUTION
19.1 All disputes arising out of or relating to this contract, including disputes as to
the meaning or interpretation of any provision of this contract or as to the carrying
into effect of any such provision or as to the termination or…[Page 17 of the
contract]
of that party’s rights in terms of or arising from this contract or estop such party
from enforcing, at any time and without notice, strict and punctual compliance with
each and every provision or term hereof. [Page 19 of the contract]”
3.
In his claim, the Claimant sustained that neither the league of country D
(hereinafter: league of country D) DRC, nor the Football Association of country D
(hereinafter: Football Association of country D) Appeals Board nor the Football
Association of country D Arbitration Tribunal are independent arbitration tribunals
guaranteeing fair proceedings and respecting the principle of equal representation
of players and clubs.
4.
Moreover, the Claimant asserted that the contract provided in the matter at hand is
the complete version of the contract. In this respect, the Claimant sustained that
“you shall note that in both instances where the employment contract was
submitted by the player and the club, there was no page 18 (for some unexplained
reason).”.
5.
In its reply to the claim, the Respondent argued that “the player has agreed to have
his mater referred to Dispute Resolution Chamber of the league of country D and
FIFA Dispute Resolution Chamber has no jurisdiction to hear the matter”.
6.
The Respondent rejected the arguments of the Claimant in respect of the league of
country D DRC, or the Football Association of country D Appeals Board or the
Football Association of country D Arbitration Tribunal not being independent
Player A, country B / Club C, country D
Page 2 of 10
arbitration tribunals guaranteeing fair proceedings and respecting the principle of
equal representation of players and clubs.
7.
The Respondent provided the following documentation along with its reply:
The Football Association of country D Constitution dated October 2011;
The country D’s National Bargaining Chamber Agreement dated October
2006.
Facts related to the substance of the case:
8.
According to the contract, the Claimant is entitled, inter alia, to a “Basic Salary” of
20,000 per month, payable on the last business day of each month, from 31 October
2014 to 30 June 2015.
9.
On 29 February 2016, the Claimant put the club in default of payment of 20,000
setting a time limit until 10 March 2016 in order to remedy the default.
10.
On 1 April 2016 and subsequently completed on 18 July 2016, the Claimant lodged a
claim against the Respondent before FIFA, asking that the Respondent be ordered
to pay to him overdue payables in the amount of 20,000, corresponding to the last
monthly salary of June 2015.
11.
The Claimant further asks to be awarded 5% interest as of 1 July 2015 until the date
of effective payment. Moreover, the Claimant requested that a fine and a ban on
registering new players be imposed on the Respondent.
12.
In its reply as to the substance of the Claimant’s claim, the Respondent rejected the
claim stating that the Claimant’s salary is a gross salary of 20,000, which after
statutory deductions, corresponds to a net amount of 16,021.83.
13.
The Respondent denied having overdue payables towards the player, as it held that,
in fact, it paid the Claimant in excess of his entitlements. In this regard, the
Respondent sustained that it paid him a total net amount of 155,195 as opposed to
144,000, which, according to the Respondent, was the value of the player’s contract.
In this respect, the Respondent provided the following detailed breakdown, which
according to it, proves the payments to the Claimant:
Amount
allegedly paid
30,000 net
Player A, country B / Club C, country D
Monthly Salary
Documents provided
October 2014
Internal
“History
highlighting payments
screen”
Page 3 of 10
20,000 net
November 2014
22,000 net
December 2014
20,000 net
January 2015
20,000 net
16,000 net
16,000 net
11,195.05 net
February 2015
March 2015
April 2015
May 2015
Internal
“History
screen”
highlighting payments
Internal
“History
screen”
highlighting payments
Internal
“History
screen”
highlighting payments
Internal accounting document
Internal accounting document
Internal accounting document
Internal accounting document
II.
Considerations of the Dispute Resolution Chamber
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 1 April 2016. 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).
2.
Subsequently, the DRC 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 2016),
in principle, it is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player from
country B and a club from country D.
3.
However, the Chamber acknowledged that the Respondent contested the
competence of FIFA’s Dispute Resolution Chamber to deal with the present case,
stating that “the player has agreed to have his mater referred to Dispute Resolution
Chamber of the league of country D and FIFA Dispute Resolution Chamber has no
jurisdiction to hear the matter”.
4.
The Chamber equally noted that the Claimant rejected such position and insisted on
the fact that FIFA had jurisdiction to deal with the present matter, as according to
him, neither the league of country D DRC, nor the Football Association of country D
Appeals Board nor the Football Association of country D Arbitration Tribunal are
independent arbitration tribunals guaranteeing fair proceedings and respecting the
principle of equal representation of players and clubs.
5.
Taking into account all the above, the Chamber emphasised that in accordance with
art. 22 lit b) of the Regulations on the Status and Transfer of Players it is competent
Player A, country B / Club C, country D
Page 4 of 10
to deal with a matter such as the one at hand, unless an independent arbitration
tribunal, guaranteeing fair proceedings and respecting the principle of equal
representation of players and clubs, has been established at national level within the
framework of the association and/or a collective bargaining agreement. With regard
to the standards to be imposed on an independent arbitration tribunal
guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010
dated 20 December 2005. Equally, the members of the Chamber referred to the
principles contained in the FIFA National Dispute Resolution Chamber (NDRC)
Standard Regulations, which came into force on 1 January 2008.
6.
While analysing whether it was competent to hear the present matter, the Chamber
deemed it vital to outline that one of the basic conditions that needs to be met in
order to establish that another organ than the DRC is competent to settle an
employment-related dispute between a club and a player of an international
dimension, is that the jurisdiction of the relevant national arbitration tribunal or
national court derives from a clear reference in the employment contract.
7.
Therefore, while analysing whether it was competent to hear the present matter,
the Dispute Resolution Chamber considered that it should, first and foremost,
analyse whether the employment contract at the basis of the present dispute
contained a clear jurisdiction clause.
8.
Having said this, the members of the Chamber turned their attention to art. 19 of
the contract which stipulated that:
“19 DISPUTE RESOLUTION
19.1 All disputes arising out of or relating to this contract, including disputes as to
the meaning or interpretation of any provision of this contract or as to the carrying
into effect of any such provision or as to the termination or…[Page 17 of the
contract]
of that party’s rights in terms of or arising from this contract or estop such party
from enforcing, at any time and without notice, strict and punctual compliance with
each and every provision or term hereof. [Page 19 of the contract]”
9.
In this respect, it was duly observed by the Chamber that the Claimant held that the
employment contract on file is the complete version of it. Moreover, the Claimant
maintained that this allegation can be corroborated as the Respondent also
provided a copy of the employment contract, which “for some unexplained reason”
does not contain page 18.
Player A, country B / Club C, country D
Page 5 of 10
10.
In this context, the DRC took note that the Respondent did not contest that the
employment contract on file is the complete version as signed by the parties.
11.
Therefore, in view of the aforementioned clause in art. 19 of the contract, the
members of the DRC were of the opinion that art. 19 par. 1 of the employment
contract does not make clear reference to one specific national dispute resolution
chamber in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore,
the members of the Chamber deem that said clause can by no means be considered
as a clear arbitration clause in favour either of a national deciding body, and,
therefore, cannot be applicable. In this regard, the Chamber pointed out that this
lack of clarity is also reflected in the Respondent’s argumentation since it refers to
the alleged competence of the league of country D NDRC without any further
reference to a jurisdiction clause in the contract.
12.
Having established that the first criterion for the recognition of the competence of a
national decision-making body is not fulfilled in the present matter, the Chamber
deemed unnecessary to examine any further points which would need to be assessed
before concluding to the competence of a national deciding body.
13.
In view of the above, the Chamber established that the Respondent’s objection to
the competence of FIFA to deal with the present matter had to be rejected and that
the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status
and Transfer of Players, to consider the present matter as to the substance.
14.
Furthermore, the DRC 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 (editions
2015 and 2016), and considering that the present claim was lodged on 1 April 2016,
the 2015 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
15.
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.
16.
Having said this, the DRC acknowledged that the Claimant and the Respondent
signed an employment contract valid as from 22 September 2014 until 30 June 2015,
in accordance with which the Claimant was entitled to receive from the Respondent,
Player A, country B / Club C, country D
Page 6 of 10
inter alia, a “Basic Salary” of 20,000 per month, from 31 October 2014 to 30 June
2015, payable on the last business day of each month.
17.
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
20,000 corresponding to the monthly salary of June 2015.
18.
In this context, the DRC took particular note of the fact that, on 29 February 2016,
the Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit expiring on 10 March 2016 in order to remedy the
default.
19.
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).
20.
Subsequently, the DRC took into account that the Respondent, for its part, held that
the claim should be rejected. In this regard, it was duly observed by the Chamber
that the Respondent maintained that statutory deductions to the Claimant’s salary
have to be applied, and with that in mind, and taking into account the monies
allegedly paid, the Claimant’s salary of June 2015 should be covered, and therefore
no outstanding remuneration is due to the Claimant.
21.
In this respect, the DRC recalled the contents of art. 12 par. 3 and par. 6 of the
Procedural Rules, according to which any party claiming a right on the basis of an
alleged fact shall carry the burden of proof, and took note that the Respondent did
not provide evidence that was considered sufficient to the Chamber’s satisfaction of
such deductions made in the past. Moreover, the DRC observed that there is no
stipulation in the contract in relation to any deduction of the Claimant’s salary. In
consequence, the “Basic Salary” of the Claimant in accordance with the contract has
to be assumed as 20,000 net.
22.
In light of the abovementioned considerations, the DRC considered that the
arguments raised by the Respondent cannot be considered a valid reason for nonpayment of the monies claimed by the Claimant, in other 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.
23.
Consequently, the DRC decided to reject the argumentation put forward by the
Respondent in its defence.
Player A, country B / Club C, country D
Page 7 of 10
24.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of
20,000 corresponding to the Claimant’s salary of June 2015.
25.
In addition, the Chamber established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
26.
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 20,000.
27.
In addition, 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 the relevant payment,
as of the day following the day on which the relevant payment fell due, i.e. 1 July
2015 until the date of effective payment.
28.
In continuation, taking into account the consideration under number II./25. 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.
29.
The Chamber established that by virtue of art. 12bis par. 4 of the Regulations it 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 decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
30.
In this connection, 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.
Player A, country B / Club C, country D
Page 8 of 10
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
3.
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 20,000, plus
interest at the rate of 5% p.a. as from 1 July 2015 until the date of effective payment.
4.
In the event that the amount plus interest 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.
5.
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
Page 9 of 10
6.
A warning is imposed on the Respondent.
*****
Note relating to the motivated 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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, country B / Club C, country D
Page 10 of 10