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 21 July 2015, the player from country B, Player A (hereinafter: Claimant), and
the club from country D, Club C (hereinafter: Respondent) signed an employment
contract valid “during the football season of 2015/2016”.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant a remuneration of EUR 400,000 in ten monthly instalments of EUR
40,000 each, for the period between August 2015 and May 2016, payable on the
last day of the relevant month.
3.
Moreover, the employment contract established that the Claimant is entitled to
an amount of EUR 15,000 corresponding to expenses, payable in three instalments
of EUR 5,000 each, on 30 September 2015, 31 January 2016 and 31 March 2016,
respectively.
4.
By correspondence dated 19 July 2016, the Claimant put the Respondent in
default of payment of EUR 115,000 setting a time limit of 10 days order to remedy
the default.
5.
On 30 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 total amount of EUR 115,000 corresponding to half of the
monthly salary for March 2016, in the amount of EUR 20,000, the monthly salaries
for April 2016 and May 2016, in the amount of EUR 40,000 each, as well as the
three instalments relating to expenses, in the amount of EUR 5,000 each, in
accordance with the employment contract.
6.
The Claimant further asks to be awarded interest as of the day following the day
on which the relevant payments fell due and that the Respondent be ordered to
pay legal and procedural costs.
7.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
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 30
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 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.
Furthermore, 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 30 September
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 the Claimant and the Respondent
signed an employment contract valid “during the football season of 2015/2016”,
in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, for the period between August 2015 and May 2016, a
remuneration of EUR 400,000 in ten monthly instalments of EUR 40,000 each,
payable on the last day of the relevant month, as well as an amount of EUR
15,000 corresponding to expenses, payable in three instalments of EUR 5,000
each, on 30 September 2016, 31 January 2016 and 31 March 2016, respectively.
Player A, country B / Club C, country D
Page 3 of 7
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 115,000 corresponding to half of the monthly salary for March 2016, in the
amount of EUR 20,000, the monthly salaries for April 2016 and May 2016, in the
amount of EUR 80,000, as well as the three instalments corresponding to
expenses, in the amount of EUR 15,000, in accordance with the employment
contract.
7.
In this context, the DRC took particular note of the fact that, on 19 July 2016, the
Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a time limit 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 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 obliged to pay to the
Claimant a monthly remuneration of EUR 40,000 between August 2015 and May
2016, payable on the last day of the relevant month, as well as the amount of EUR
15,000 relating to expenses, payable in three instalments of EUR 5,000 each, on 30
September 2016, 31 January 2016 and 31 March 2016, respectively.
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.
13.
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 115,000 corresponding to half of the monthly salary for March 2016, the
monthly salaries for April 2016 and May 2016 as well as the three instalments
relating to expenses.
Player A, country B / Club C, country D
Page 4 of 7
14.
In addition, the Chamber 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 EUR 115,000.
16.
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 each of the relevant
payments calculated as of the day following the day on which the relevant
payments fell due, until the date of effective payment.
17.
Furthermore, the Chamber decided to reject the Claimant’s claim pertaining to
legal and procedural costs in accordance with art. 18 par. 4 of the Procedural
Rules and the Chamber’s respective longstanding jurisprudence in this regard.
18.
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.
19.
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.
20.
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.
21.
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
115,000 as well as the aggravating circumstance of a repeated offence, the DRC
regarded a fine amounting to CHF 75,000 as appropriate and hence decided to
impose said fine on the Respondent.
Player A, country B / Club C, country D
Page 5 of 7
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
115,000, plus interest at the rate of 5% p.a. until the date of effective payment as
follows:
a. 5% p.a. on the amount of EUR 5,000 as from 1 October 2015;
b. 5% p.a. on the amount of EUR 5,000 as from 1 February 2016;
c. 5% p.a. on the amount of EUR 25,000 as from 1 April 2016;
d. 5% p.a. on the amount of EUR 40,000 as from 1 May 2016;
e. 5% p.a. on the amount of EUR 40,000 as from 1 June 2016.
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.
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 DRC
of every payment received.
Player A, country B / Club C, country D
Page 6 of 7
6.
The Respondent is ordered to pay a fine in the amount of
CHF 75,000. 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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