DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 27 November 2017,
by Mario Gallav otti (Italy), DRC judge,
on the claim presented by the player,
Play er 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 cas e
1.
On 17 May 2015, the player of Country B, Player A (hereinafter: Claimant), and the
club of Country D, Club C (hereinafter: Respondent), signed an employment contract
valid as from 17 May 2015 until 30 May 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia the following remuneration:
a. USD 20,000 “paid by signing of this contract”;
b. USD 30,000 “payable in August 2015”;
c. USD 5,000 as “monthly salary payable in end of each month during the
period covered by this contract”.
3.
By correspondence dated 8 June 2017, the Claimant put the Respondent in default
of payment of the amount of USD 40,000 setting a 10 days’ time limit in order to
remedy the default.
4.
On 4 August 2017, 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 40,000 corresponding to:
a. USD 25,000 as outstanding part of the total amount of USD 30,000 “payable
in August 2015” that the player was entitled to receive;
b. USD 15,000 as outstanding salaries for the months of July, August and
September 2015 (i.e. 3x USD 5,000).
5.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 4 August 2017. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2017;
hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, the DRC judge 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
Player A, Country B / Club C, Country D
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with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition
2016) he is competent to deal with the matter at stake, which concerns an
employment-related dispute with an international dimension between a player of
Country B and a club of Country D.
3.
Furthermore, the DRC judge 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
(edition 2016), and considering that the present claim was lodged on 4 August 2017,
the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the
matter at hand as to the substance.
4.
Subsequently, the DRC judge duly noted that with regard to the fact that the
employment contract at the basis of the dispute was concluded on 17 May 2015, and
that the Claimant had lodged his claim on 4 August 2017, he should examine if the
present claim – or any part of it – should be considered as time-barred.
5.
In this respect, the DRC judge referred to art. 25 par. 5 of the Regulations, which, in
completion to the general procedural terms outlined in the Procedural Rules, clearly
establishes that the decision-making bodies of FIFA shall not hear any dispute if
more than two years have elapsed since the event giving rise to the dispute arose
and that the application of this time limit shall be examined ex officio in each
individual case.
6.
In view of the above, the DRC judge deemed it fundamental to underline that in order
to determine whether he could hear the present matter, he should, first and foremost,
establish which is “the event giving rise to the dispute”, i.e. which is the starting point of
the time period of two years as set out under art. 25 par. 5 of the Regulations. In this
respect, the DRC judge referred to the claim of the Claimant, according to which the
latter requested outstanding salaries for the period between July 2015 until September
2015.
7.
On account of the foregoing and considering that the contract did specify a payment
date of the salaries, i.e. “at the end of each month during the period covered by this
contract”, the DRC judge determined that the salaries fell due at the end of each
working month. Consequently, the DRC judge decided that the event giving rise to the
dispute and hereby the starting point of the time period of two years set out under art.
25 par. 5 of the Regulations regarding the salaries from July to September 2015 occurred
on 31 July 2015, 31 August 2015 and 30 September 2015 respectively.
8.
As a consequence, recalling that the present claim was submitted to FIFA on 4 August
2017, the DRC judge concluded that the time limit of two years had elapsed for the
Player A, Country B / Club C, Country D
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salary of July 2015. Therefore, only part of the claim of the Claimant can be heard by the
DRC judge, i.e. the claim for the salaries of August and September 2015 as well as the
claim for the outstanding part of the second instalment “payable in August 2015”.
9.
The competence of the DRC judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
10.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 17 May 2015 until 30 May
2016, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, the following amounts:
a. USD 20,000 “paid by signing of this contract”;
b. USD 30,000 “payable in August 2015”;
c. USD 5,000 as “monthly salary payable in end of each month during the
period covered by this contract”.
11.
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
40,000 corresponding to:
a. USD 25,000 as outstanding part of the total amount of USD 30,000 “payable
in August 2015” that the player was entitled to receive;
b. USD 15,000 as outstanding salaries for the months of July, August and
September 2015 (i.e. 3x USD 5,000).
12.
In this context, the DRC judge took particular note of the fact that, on 8 June 2017,
the Claimant put the Respondent in default of payment of the aforementioned
amounts, setting a 10 days’ time limit in order to remedy the default.
13.
Consequently, the DRC judge 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).
14.
Subsequently, the DRC judge 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 judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
Player A, Country B / Club C, Country D
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15.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.
16.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
17.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s monthly remuneration in the total
amount of USD 10,000 corresponding to two monthly salaries as from August 2015
until and including September 2015, as well as the amount of USD 25,000
corresponding to the outstanding part of the second instalment “payable in August
2015” as per the contract.
18.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
19.
Consequently, the DRC judge 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 35,000.
20.
In continuation, taking into account the consideration under number II./18. above,
the DRC judge 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.
21.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. In this context, the DRC judge
highlighted that, on 19 May 2017, the Respondent had already been found to have
delayed a due payment for more than 30 days without a prima facie contractual
basis and without the Respondent having responded to the relevant claim, as a
result of which a fine had been imposed on the Respondent by the DRC Judge.
22.
Moreover, the DRC judge 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.
23.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as
well as the considerations under numbers II./21. and II./22. above, the DRC judge
Player A, Country B / Club C, Country D
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decided to impose a more 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 USD 35,000 as well as the aggravating circumstance of a repeated
offence, the DRC judge regarded a fine amounting to CHF 7,500 as appropriate and
hence decided to impose said fine on the Respondent.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is accepted insofar as it is admissible.
2.
The Respondent, Club C, has to pay to the Claimant overdue payables in the amount
of USD 35,000 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 DRC judge
of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 7,500. The fine is to be paid w ithin 30 day s of notification of the present
decision to FIFA to the following bank account with reference to case nr. XXX:
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 m otiv ated decis ion (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
Player A, Country B / Club C, Country D
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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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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