DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed by way of circulars on 7 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 25 January 2016, 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 1 January 2016 until 31 December 2018.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia a signing-on fee in the total amount of USD 450,000, payable
in three equal instalments of USD 150,000 each, due respectively on 29 February
2016, 30 April 2016 and 31 May 2016.
3.
By correspondence dated 22 September 2016, the Claimant put the Respondent in
default of payment of the total amount of USD 200,000 setting a 10 days’ time limit
in order to remedy the default.
4.
On 6 September 2016, and completed on 4 October 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 USD 200,00 corresponding
to the two last instalments of the signing-on fee. In particular, the Claimant
explained that the Respondent failed to pay part of the instalment due on 30 April
2016, i.e. USD 50,000, as well as the full instalment due on 31 May 2016.
5.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Considerations of the Dispute Resolution Chamber
1.
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 6 September
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 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.
3.
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 6 September 2016, the
2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter
at hand as to the substance.
Player A, country B / Club C, country D
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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 Chamber
started by acknowledging all the above-mentioned facts as well as the arguments
and the 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.
5.
Having said this, the members of the DRC acknowledged that the Claimant and the
Respondent signed an employment contract valid from 1 January 2016 until 31
December 2018, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, a signing-on fee in the total amount of USD 450,000
payable in instalments.
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 USD
200,000 in connection with the two last instalments of the signing-on fee.
7.
In this context, the Chamber took particular note of the fact that, on 22 September
2016, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a 10 days’ time limit 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).
9.
Subsequently, the DRC 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 members of the DRC considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the Chamber
concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
11.
Having said this, the DRC acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was inter alia obliged to pay to
the Claimant a signing-on fee in the total amount of USD 450,000, payable in three
equal instalments of USD 150,000 each, due respectively on 29 February 2016, 30
April 2016 and 31 May 2016.
12.
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.
Player A, country B / Club C, country D
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13.
On account of the aforementioned considerations, the members of the DRC
established that the Respondent failed to remit the Claimant’s remuneration in the
total amount of USD 200,000 corresponding to part of the instalment due on 30
April 2016, i.e. USD 50,000, as well as the full instalment of USD 150,000 due on 31
May 2016.
14.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
15.
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 200,000.
16.
In continuation, taking into account the consideration under number II./14. 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.
The Chamber established that by virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. On account of the above and
bearing in mind that the Respondent did not reply to the claim of the Claimant, 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 200,000, the DRC regarded a fine amounting to CHF 15,000 as appropriate and
hence decided to impose said fine on the Respondent.
18.
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.
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 overdue payables in the amount
of USD 200,000 within 30 days as from the date of notification of this decision.
3.
In the event that the amount due to the Claimant is not paid by the Respondent
within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry
of the aforementioned time limit and 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.
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 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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