DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 30 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 2 July 2015, Club E (Country D), the Player of Country B, Player A
(hereinafter: Claimant), and the Club of Country D, Club C (hereinafter:
Respondent), signed a loan contract, according to which the Claimant was
loaned to the Respondent as from 1 July 2015 until 30 June 2016.
2.
On 25 August 2015, the Claimant and the Respondent signed an
“Agreement on payment of fees for improvement of sport” (hereinafter:
agreement).
3.
In accordance with the agreement, the Respondent undertook to pay to the
Claimant “total amount of 7.000, in two equal instalments, i.e.: I instalment
in the amount of 3.500, after signing of this Agreement (written by hand:
10/09 – 15/09) II instalment in the amount of 3.500 (written by hand: until
20/01/2016”.
4.
By correspondence dated 21 August 2017, the Claimant put the Respondent
in default of payment of 7,000, setting a 10 days’ time limit in order to
remedy the default.
5.
On 3 October 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 7,000 corresponding to the two instalments
provided for in the agreement.
6.
The Claimant further asked to be awarded interest of 5% p.a. as of the
expiry of a time limit of 30 days from the notification of the decision.
7.
The Respondent submitted its response to the claim after expiry of the
deadline set by FIFA in order for the Respondent to present its reply.
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 3 October 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).
Player A, Country B / Club C, Country D
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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 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 3 October 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 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 abovementioned 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.
5.
Having said this, the DRC judge acknowledged that Club E, the Claimant
and the Respondent signed a loan agreement valid as from 1 July 2015 until
30 June 2016, and that, on 25 August 2015, the Claimant and the
Respondent signed an agreement in accordance with which the former was
entitled to receive from the latter the “total amount of 7.000, in two equal
instalments, i.e.: I instalment in the amount of 3.500, after signing of this
Agreement (written by hand: 10/09 – 15/09) II instalment in the amount of
3.500 (written by hand: until 20/01/2016”.
6.
The Claimant lodged a claim against the Respondent in front of FIFA,
maintaining that the Respondent had overdue payables towards him in the
total amount of 7,000, corresponding to the two instalments provided for in
the agreement.
7.
In this context, the DRC judge took particular note of the fact that, on 21
August 2017, 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.
Player A, Country B / Club C, Country D
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8.
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).
9.
Subsequently, the DRC judge observed that the Respondent replied to the
claim of the Claimant outside the time limit set by FIFA. As a result, in line
with art. 9 par. 3 of the Procedural Rules, the DRC judge decided that the
reply of the Respondent shall not be taken into account and established
that, in accordance with the aforementioned provision, he shall take a
decision upon the basis of the documents already on file prior to expiry of
said time limit, in casu, upon the statements and documents presented by
the Claimant.
10.
Having said this, the DRC judge acknowledged that, in accordance with the
agreement provided by the Claimant, the Respondent was obliged to pay to
the Claimant the “total amount of 7.000, in two equal instalments, i.e.: I
instalment in the amount of 3.500, after signing of this Agreement (written
by hand: 10/09 – 15/09) II instalment in the amount of 3.500 (written by
hand: until 20/01/2016”.
11.
The DRC judge further noted that, at the time the claim was lodged, i.e. 3
October 2017, more than two years had elapsed since the first instalment
fell due, i.e. between 10 and 15 September 2015. Therefore, the DRC judge
pointed out that, in line with art. 25 par. 5 of the Regulations, the claim of
the Claimant pertaining to the first instalment in the amount of 3,500 is
time-barred and, thus, not admissible. Hence, the DRC judge concluded that
the Claimant’s claim is admissible only with regards to the second instalment
of 3,500, which fell due on 20 January 2016.
12.
On account of the aforementioned considerations, the DRC judge
established that the Respondent failed to remit the Claimant’s remuneration
in the amount of 3,500, corresponding to the second instalment provided
for in the agreement.
13.
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.
14.
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 3,500.
Player A, Country B / Club C, Country D
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15.
In continuation, taking into account the consideration under number II./13.
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.
16.
The DRC judge established that by virtue of art. 12bis par. 4 of the
Regulations he has competence to impose sanctions on the Respondent. On
account of the above and bearing in mind that the Respondent replied to
the claim of the Claimant outside the time limit, the DRC judge 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 3,500, the DRC judge regarded a fine amounting to CHF 500 as
appropriate and hence decided to impose said fine on the Respondent.
17.
In this connection, the DRC judge 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 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, within 30 days as from
the date of notification of this decision, overdue payables in the amount of
3,500.
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.
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 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 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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