DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 14 November 2016,
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 30 June 2015, the player from country B, Player A (hereinafter: Claimant) and
the club from country D, Club C (hereinafter: Respondent) concluded an
employment contract (hereinafter: contract) valid from the date of signature until
30 May 2016.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant
the total amount of EUR 8,000, divided in 10 equal instalments of EUR 800 each, the
first one due on 31 August 2015 and the remaining ones at the end of every
following month.
3.
Moreover, the contract established that “The Player accepts to give the Employer a
period of 45 (forty five) days as grace period for the payment of every worked salary
or any other kind of payment”.
4.
On 1 July 2015, the Claimant and the Respondent signed a supplementary
agreement, valid for the period between June 2015 and May 2016.
5.
In accordance with the supplementary agreement, the Respondent undertook to
pay to the Claimant the following amounts:
-
-
EUR 17,000, divided in ten equal monthly instalments “payable on the 1st day
of the next working month”, the first one due on 31 August 2015 and the last
on 31 May 2016;
EUR 5,000 as additional bonus “if the Player participates in 17 official games”.
6.
Moreover, the supplementary agreement established that “The Player accepts to
give the Employer a grace period of 45 (forty five) days for the payment of his
worked month”.
7.
By correspondence dated 6 June 2016 and 31 August 2016, the Claimant put the
Respondent in default of payment of the total amount of EUR 13,050, regarding
monthly instalments between February and May 2016 and bonuses considering both
the employment contract and the supplementary agreement, setting a 10 days’ time
limit in order to remedy the default.
8.
On 26 August 2016, completed on 13 September 2016, 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 13,050 corresponding to the
following:
-
EUR 550 as part of the monthly instalment for February 2016;
EUR 2,500 regarding March 2016, composed of EUR 800 in accordance with the
contract and EUR 1,700 in accordance with the supplementary agreement;
Player A, country B / Club C, country D
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-
-
EUR 2,500 regarding April 2016, composed of EUR 800 in accordance with the
contract and EUR 1,700 in accordance with the supplementary agreement;
EUR 2,500 regarding May 2016, composed of EUR 800 in accordance with the
employment contract and EUR 1,700 in accordance with the supplementary
agreement;
EUR 5,000 regarding bonuses in accordance with the supplementary
agreement.
9.
The Claimant further asks to be awarded interest and legal fees.
10.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Considerations of the Dispute Resolution Chamber
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 26 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).
Subsequently, the members of 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), the Dispute Resolution Chamber 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.
Furthermore, the Chamber 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 on 26 August 2016, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and documentation on file. However, the DRC 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.
Player A, country B / Club C, country D
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Having said this, the members of the Chamber acknowledged that, on 30 June 2015,
the Claimant and the Respondent entered into a contract valid until 30 May 2016.
The Chamber further acknowledged that pursuant to said contract, the Respondent
undertook to pay to the Claimant the total amount of EUR 8,000 divided in 10
instalments of EUR 800 each, the first instalment due on 31 August 2015 and the
remaining ones at the end of every month. Moreover, the DRC took note that the
contract established that the Claimant accepted to grant the Respondent a grace
period of 45 days for the payment of every salary.
In addition, the members of the DRC took note that the Claimant and the
Respondent also signed a supplementary agreement, valid for the period between
June 2015 and May 2016, by means of which the Respondent accepted to pay the
Claimant the amount of EUR 17,000 divided in 10 equal monthly instalments, the
first instalment due on 31 August 2015 and the last one on 31 May 2016. Moreover,
the Claimant was entitled to a bonus of EUR 5,000 depending on the Claimant’s
participation in matches. Finally, the DRC took note that the supplementary
agreement established that the Claimant accepted to grant the Respondent a grace
period of 45 days for the payment of the “worked month”.
In continuation, the DRC 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 amount of EUR 13,050, corresponding to his remuneration in
accordance with both the contract and/or the supplementary agreement, as follows:
-
EUR 550 as part of the monthly instalment for February 2016;
EUR 2,500 regarding March 2016;
EUR 2,500 regarding April 2016;
EUR 2,500 regarding May 2016;
EUR 5,000 regarding the bonuses in accordance with the supplementary
agreement.
In this context, the members of the DRC took particular note of the fact that, on 31
August 2016, the Claimant put the Respondent in default of payment of the
aforementioned amounts setting a time limit of 10 days in order to remedy the
default.
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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Subsequently, the Chamber 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 considered that the Respondent renounced its
right to defence and thus accepted the allegations of the Claimant.
Furthermore, as a consequence of the aforementioned consideration, the members
of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural
Rules, they shall take a decision upon the basis of the documents on file, in other
words, upon the statements and documents presented by the Claimant.
Having said this, the DRC acknowledged that in accordance with the contract signed
by and between the parties, the Respondent was obliged to pay to the Claimant 10
monthly instalments in the amount of EUR 800. In addition, in accordance with the
supplementary agreement, the Respondent was obliged to pay him 10 monthly
instalments of EUR 1,700 and a bonus of EUR 5,000, the latter depending on the
Claimant’s participation in matches.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of EUR
13,050 in accordance with both the contract and the supplementary agreement
concluded between the parties.
In addition, the DRC established that, following the expiry of the 45 day grace
period, the Respondent had delayed a due payment for more than 30 days without
a prima facie contractual basis.
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 EUR 13,050.
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 the amount of EUR
13,050 as from 26 August 2016 until the date of effective payment.
Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim
pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules
and the Chamber’s respective longstanding jurisprudence in this regard.
Player A, country B / Club C, country D
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In continuation, taking into account the consideration under number II./16. 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.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. In this context, the Chamber
highlighted that, on 24 July 2015 (case ref. XXXX), on 14 June 2016 (case ref. XXXX),
and on 15 July 2016 (case ref. XXXX), the Respondent had already been found by
the DRC judge and the DRC to have delayed a due payment for more than 30 days
without a prima facie contractual basis.
Moreover, the members of the Chamber wished to underline and took into account
that the Respondent had been found by the Dispute Resolution Chamber and/or the
DRC judge responsible for not complying with its financial obligations towards
players on various occasions in the recent past.
In continuation, the members of the Chamber noted that on the basis of these
circumstances, on 15 July 2016, the DRC decided that, should the Respondent fail to
pay the amount awarded to the creditor within 30 days of notification of the
relevant decision, a ban from registering any new players, either nationally or
internationally, would become effective on the Respondent for the next two entire
registration periods following the notification of said decision.
The Chamber further took into account that, since the Respondent did not comply
with its obligation to pay the amount awarded to the creditor in accordance with
the aforementioned decision passed by the DRC on 15 July 2016, said ban from
registering any new players, either nationally or internationally, during two entire
and consecutive registration periods will indeed be effective as from the
registration period of country D starting in January 2017.
Having said that, the Chamber established that, in the present matter, the
Respondent is found to have delayed a due payment for more than 30 days without
a prima facie contractual basis for the fourth time.
Along these lines, the DRC referred to art. 12bis par. 6 of the Regulations, which
establishes that a repeated offence will be considered as an aggravating
circumstance and lead to more severe penalty.
Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis
paras 7 and 8 of the Regulations, the DRC decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for
one entire registration period. The execution of this registration ban is suspended
during a probationary period of one year following the notification of the present
Player A, country B / Club C, country D
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decision. If the Respondent commits another infringement during the one year
probationary period, the suspension is automatically revoked and the registration
ban executed.
In light of the consideration under number II./24. above, the Chamber concluded
that the aforementioned probationary period of one year will run in concurrence
with the two entire and consecutive registration periods ban imposed on the
Respondent on 15 July 2016.
In consideration of this circumstance, and on account of art. 12bis par. 5 of the
Regulations, the members of the Chamber decided to impose, in addition to the
aforementioned suspended ban from registering any new players, a severe fine on
the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Taking
into consideration the above and that the amount due is of EUR 13,050, the Dispute
Resolution Chamber regarded a fine amounting to CHF 10,000 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 13,050,
plus interest at the rate of 5% p.a. as from 26 August 2016 until the date of effective
payment.
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.
Any further request filed by the Claimant is rejected.
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 Dispute
Resolution Chamber of every payment received.
6.
The Respondent shall be banned from registering any new players, either nationally
or internationally, for one entire registration period. The execution of this
registration ban is suspended during a probationary period of one year following
the notification of the present decision. If the Respondent commits another
infringement during the probationary period, the suspension is automatically
revoked and the registration ban executed.
Player A, country B / Club C, country D
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7.
The Respondent is ordered to pay a fine in the amount of CHF 10,000. 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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