DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 November 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tijn Boey kens (Belgium ), member
Tom is lav Kas alo (Croatia), member
Mario Gallav otti (Italy ), member
Joel Talav era Zárate (Paraguay ), member
Daan de Jong (The Netherlands ), member
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 1 July 2016, the Claimant and the Respondent signed an employment contract
valid as from 1 July 2016 until 30 June 2019.
2.
On 24 January 2017, the Claimant and the Respondent signed a termination
agreement, by means of which the employment contract signed between the parties
was terminated as from 24 January 2017 and based on which the Claimant would
receive the total amount of EUR 145,000. On 1 March 2017, the Claimant and the
Respondent signed an amendment to the termination agreement, by means of
which the payment schedule of the amount of EUR 145,000 was changed.
3.
In accordance with article 3 the termination agreement, as well as the amendment
to the termination agreement, the Respondent undertook to pay to the Claimant
inter alia the total amount of EUR 155,000 in 11 instalments as follows:
EUR 10,000 on 1 March 2017;
EUR 10,000 on 5 April 2017;
EUR 15,000 on 30 April 2017;
EUR 15,000 on 30 May 2017;
EUR 15,000 on 30 June 2017;
EUR 15,000 on 30 July 2017;
EUR 15,000 on 30 August 2017;
EUR 15,000 on 30 September 2017;
EUR 15,000 on 30 October 2017;
EUR 15,000 on 30 November 2017;
EUR 15,000 on 30 December 2017.
4.
Furthermore, in article 6 of the termination agreement, the parties agreed upon the
following clause: ‘In case Club C fails to pay in full two consecutive instalments on
the agreed dates as it is described in par. 3 and after the expire of a grace period of
15 days, then immediately all the remaining amounts becomes due and payable as
well’.
5.
By correspondence dated 28 July 2017, the Claimant put the Respondent in default
of payment of the amount of EUR 145,000, setting a 10 days’ time limit, in order to
remedy the default
6.
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
145,000, corresponding to the second instalment of EUR 10,000, due on 5 April 2017,
as well as 9 instalments of EUR 15,000 each, due between 30 April and 30 December
2017. In this respect, the Claimant explains that the Respondent only paid him the
amount of EUR 10,000 on 1 March 2017, and that as a result and in view of the
contents of article 6 of the termination agreement, as from 14 June 2017, all the
Player A, Country B / Club C, Country D
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remaining amounts under the termination agreement were due and remained
outstanding for more than 30 days.
7.
The Claimant further asks to be awarded interest of 5% p.a. as of 14 June 2017 and
that sporting sanctions will be imposed on the Respondent.
8.
In reply to the claim, the Respondent held that it accepts the liability to pay the
amount of EUR 145,000, but that due to its financial situation, it is not able to make
the payment immediately.
II.
Cons iderations of the Dis pute Res olution Cham ber
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 16 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 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 of Country B and a club
of 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 16 August 2017, 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 between 1 July 2016 and 30 June 2019.
Moreover, on 24 January 2017, the Claimant and the Respondent signed a
termination agreement, as well as on 1 March 2017 an amendment to said
Player A, Country B / Club C, Country D
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termination agreement, in accordance with which the Claimant was entitled to
receive from the Respondent, inter alia, the total amount of EUR 155,000, payable in
11 instalments as follows:
EUR 10,000 on 1 March 2017;
EUR 10,000 on 5 April 2017;
EUR 15,000 on 30 April 2017;
EUR 15,000 on 30 May 2017;
EUR 15,000 on 30 June 2017;
EUR 15,000 on 30 July 2017;
EUR 15,000 on 30 August 2017;
EUR 15,000 on 30 September 2017;
EUR 15,000 on 30 October 2017;
EUR 15,000 on 30 November 2017;
EUR 15,000 on 30 December 2017.
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
145,000, corresponding to the instalment of EUR 10,000, due on 5 April 2017, as well
as the residual 9 installments of EUR 15,000 each.
7.
In this context, the DRC took particular note of the fact that, on 28 July 2017, the
Claimant put the Respondent in default of payment of the aforementioned amount
of EUR 145,000, setting a time limit expiring on 7 August 2017 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, held that
it indeed was obliged to pay the amount of EUR 145,000 to the Claimant, however
that it was not able to make said payment yet, due to its bad financial situation.
10.
In this regard, the DRC considered that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the
Claimant, in other words, the reasons brought forward by the Respondent in its
defence do not exempt the Respondent from its obligation to fulfil its contractual
obligations towards the Claimant.
11.
Consequently, the DRC decided to reject the argumentation put forward by the
Respondent in its defence.
Player A, Country B / Club C, Country D
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12.
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
145,000, corresponding to the instalment of EUR 10,000, due on 5 April 2017, as well
as the residual 9 installments of EUR 15,000 each, due between 30 April 2017 and 30
December 2017.
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 total amount of EUR 145,000.
15.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC decided that the Respondent
must pay to the Claimant interest of 5% p.a. on the amount of EUR 145,000 as from
14 June 2017 until the date of effective payment.
16.
In continuation, taking into account the consideration under number II./13. 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 Dispute Resolution Chamber established that in virtue of art. 12bis par. 4 of the
Regulations it has competence to impose sanctions on the Respondent. Therefore,
bearing in mind that the Respondent duly replied to the claim of the Claimant and
in the absence of the circumstance of repeated offence, the Dispute Resolution
Chamber decided to impose a warning on the Respondent in accordance with art.
12bis par. 4 lit. a) of the Regulations.
18.
In this respect, the Dispute Resolution Chamber 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.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is 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 145,000, plus
interest at the rate of 5% p.a. as from 14 June 2017 until the date of effective
payment.
Player A, Country B / Club C, Country D
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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.
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.
A warning is imposed on the Respondent.
*****
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
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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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