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
1.
On 5 January 2012, the player from country B, Player A (hereinafter: Claimant), and
the club from country D, Club C (hereinafter: Respondent), signed an employment
contract valid as from 5 January 2012 until 31 May 2016.
2.
According to the employment contract, the Claimant was entitled to receive from the
Respondent, inter alia, the amount of EUR 600,000 for the 2015-16 season, payable as
follows:
a. EUR 250,000 on 22 August 2015;
b. EUR 100,000 on 22 November 2015;
c. EUR 125,000 on 22 February 2016;
d. EUR 125,000 on 22 May 2016.
3.
On 29 June 2016, the Claimant put the Respondent in default of payment of the final
instalment of EUR 125,000 setting a 10 days’ time limit to remedy default.
4.
On 29 July 2016, in separate proceedings relating to the third instalment that fell due
on 22 February 2016, the Dispute Resolution Chamber decided inter alia that the
Respondent must pay the amount of EUR 75,000 plus 5% interest p.a. as of 23
February 2016 to the Claimant.
5.
After having received an apparent payment of EUR 100,000, which the Claimant
allocated to the 22 May 2016 instalment, on 1 September 2016, the Claimant
reminded the Respondent to pay the remainder of EUR 25,000 within 10 days.
6.
On 12 August 2016, the Claimant lodged a claim against the Respondent before FIFA,
which was subsequently amended on 1 September 2016, asking to be awarded
payment of outstanding receivables in the total amount of EUR 25,000, plus 5%
interest p.a. as of 22 May 2016, in connection with the final instalment of EUR 125,000
that fell due on 22 May 2016 in accordance with the employment contract.
7.
The Respondent, for its part, rejects the claim and holds that it paid the total amount
of EUR 577,437.50 to the Claimant for the 2015-16 season, whereas the Claimant was
entitled to the amount of EUR 600,000. The Respondent concluded that, therefore,
the claim must be dismissed.
8.
In reaction, the Claimant pointed out that a payment of EUR 77,437.50 he received
from the Respondent was the amount plus interest decided by the DRC on 29 July
2016 (cf. point I./4. above).
9.
No further comments were received from the Respondent, in spite of having been
invited to submit its duplica.
Player A, country B / Club C, country D
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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 12 August 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 Chamber 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 2016), 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.
In continuation, 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
2016), and considering that the present claim was lodged 12 August 2016, the 2016
edition of said regulations (hereinafter: 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, on 5 January 2012, the Claimant and
the Respondent signed an employment contract, which was valid as from the date of
signature until 31 May 2016.
6.
The Claimant lodged a claim against the Respondent in front of FIFA, maintaining
that the Respondent has overdue payables towards him in the amount of EUR 25,000
in connection with the final instalment of EUR 125,000 that fell due on 22 May 2016 in
accordance with the employment contract. According to the Claimant, the
Respondent had only paid him the amount of EUR 100,000 in relation to said
instalment and that, therefore, the amount of EUR 25,000 remains outstanding.
7.
In this context, the DRC took particular note of the fact that with his correspondence
dated 29 June 2016, the Claimant put the club in default of payment of the full
instalment of EUR 125,000 setting a 10 days’ time limit to remedy default and that,
after receipt of payment of the amount of EUR 100,000, the Claimant reminded the
Player A, country B / Club C, country D
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Respondent, on 1 September 2016, to remit the remainder of EUR 25,000 within 10
days and amended his claim accordingly.
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).
9.
Subsequently, the DRC took into account that the Respondent, for its part,
acknowledged that the Claimant was entitled to receive the total amount of EUR
600,000 for the 2015-16 season and held that it had paid EUR 577,437.50 in total to
the Claimant for said season. Consequently, the Respondent argued that the
Claimant’s claim shall be dismissed.
10.
In this regard, the Claimant stated that he received the amount of EUR 77,473.50 from
the Respondent on the basis of the decision passed by the DRC on 29 July 2016 in
relation to the third instalment that fell due on 22 February 2016, which statement
was not further commented by the Respondent.
11.
Having said this, the DRC acknowledged that in accordance with the employment
contract the Respondent was obliged to pay to the Claimant the total amount of EUR
600,000 to the Respondent for the 2015-16 season, with a final instalment of EUR
125,000 falling due on 22 May 2016, EUR 100,000 of which were received by the
Claimant.
12.
On the basis of the above considerations, the Chamber decided to reject the
Respondent’s argumentation and concluded that the Respondent failed to remit the
Claimant’s remuneration in the total amount of EUR 25,000 in relation with the
instalment that fell due on 22 May 2016.
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 amount of EUR 25,000.
15.
In addition, taking into consideration the Claimant’s request as well as the Chamber’s
constant jurisprudence, the Chamber decided to award the Claimant interest at the
rate of 5% p.a. on the outstanding amount as of the day following the day on which
it fell due.
16.
In continuation, taking into account the consideration under number II./13. above, the
Dispute Resolution Chamber 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
Player A, country B / Club C, country D
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without a prima facie contractual basis may be sanctioned in accordance with art.
12bis par. 4 of the Regulations.
17.
The DRC established that in virtue of the aforementioned article, it has competence to
impose sanctions on the Respondent. In this context, the DRC highlighted that on
three previous occasions, i.e. on 17 April 2015, on 4 February 2016, and on 29 July
2016 the Respondent had already been found by the Single Judge of the Players’
Status Committee and the DRC to have delayed a due payment for more than 30 days
without a prima facie contractual basis, as a result of which sanctions had been
imposed on the Respondent.
18.
Furthermore, the Chamber took into account that the Respondent is involved in two
other employment-related disputes in connection with overdue payables, both of
which, in addition to the present matter, have been submitted to this Chamber on the
occasion of today’s meeting where sanctions have been imposed on the Respondent.
19.
Therefore, bearing in mind the above as well as art. 12bis par. 6 of the Regulations
considerations, in the present matter the DRC decided to impose a severe fine on the
Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore,
taking into consideration the amount due of EUR 25,000 as well as the aggravating
circumstance of a repeated offence, the DRC regarded a fine amounting to CHF
25,000 as appropriate and hence decided to impose said fine on the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is partially 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 25,000 plus 5%
interest p.a. as from 23 May 2016 until the date of effective payment.
3.
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.
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 Dispute
Resolution Chamber of every payment received.
5.
Any further claim lodged by the Claimant is rejected.
Player A, country B / Club C, country D
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6. The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 25,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account with reference to case nr. XXXX:
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 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
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