DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 19 November 2018,
in the following composition:
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Jon New m an (US A), 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 15 July 2015, the Player of Country B, Player A (hereinafter: the Claimant) and the
Club of Country D, Club C (hereinafter: the Respondent) signed an employment
contract (hereinafter: the contract) valid as from the date of signature until the end
of the 2017/2018 sporting season.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant,
inter alia, EUR 302,500 in 10 equal monthly instalments of EUR 30,250 each, as from
September 2017 until June 2018, falling due “at the last day of every month”.
3.
By correspondence dated 14 August 2018, the Claimant put the Respondent in
default of payment of EUR 181,500 setting a time limit of 10 days in order to remedy
the default.
4.
On 12 September 2018, 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 181,500, corresponding to his outstanding salaries as from
January 2018 until June 2018 (EUR 30,250 each for 6 months), plus 5% interest p.a. as
from the due dates.
5.
In reply to the claim, the Respondent rejected the Claimant’s claim and affirmed that
it had made “several payments to the [Claimant] related to the employment contract
and as of today, [it] has no overdue and unpaid debt towards the [Claimant]”. In this
regard, the Respondent indicated that “payment documents [have] to be presented,
the translation work is still being done”.
6.
In this regard, no further documentation was provided by the Respondent.
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 12
September 2018. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2018;
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 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
2018), 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 2018), and considering that the present claim was lodged on 12
September 2018, the 2018 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 as from the date of signature, i.e. 15 July
2015, until the end of the 2017/2018 Season in Country D.
6.
Moreover, the DRC noted that, according to the contract, the Claimant was, inter
alia, entitled to receive from the Respondent the amount of EUR 302,500, payable in
10 equal monthly instalments of EUR 30,250 each, as from September 2017 until June
2018, falling due “at the last day of every month”.
7.
In continuation, the DRC duly noted that 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 181,500, corresponding to his
outstanding salaries as from January 2018 until June 2018, i.e. EUR 30,250 each for 6
months, plus 5% interest p.a. as from the due dates.
8.
In this context, the DRC took particular note of the fact that, on 14 August 2018,
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.
9.
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
Player A, Country B / Club C, Country D
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have granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
10.
Subsequently, the DRC took into account that the Respondent, for its part,
affirmed that it had made “several payments” to the Claimant and that “as of
today, it has no overdue and unpaid debt towards [the Claimant]”. Moreover, the
DRC observed that the Respondent did not present any documentation at all in
support of its allegations.
11.
In this respect, the DRC emphasized that according to art. 12 par. 3 of the
Procedural Rules, any party claiming a right on the basis of an alleged fact shall
carry the burden of proof.
12.
On account of the above, and in view of the fact that the Respondent did not
submit any corroborating evidence that it had duly complied with its contractual
obligations towards the Claimant, the DRC considered that the arguments raised
by the Respondent cannot be considered a valid reason for the 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.
13.
Consequently, the Chamber decided to reject the argumentation put forward by
the Respondent in its defence.
14.
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 181,500, corresponding to his outstanding salaries as from January 2018 until
June 2018 (i.e. EUR 30,250 each for 6 months).
15.
In addition, the DRC established that the Respondent had delayed a due payment
for more than 30 days without a prima facie contractual basis.
16.
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 181,500.
17.
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 each of the
instalments included in the amount of EUR 181,500 as of the day following the
day on which the relevant instalment fell due until the date of effective payment.
18.
In continuation, taking into account the consideration under number II./15. 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
Player A, Country B / Club C, Country D
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facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of
the Regulations.
19.
The DRC established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. 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 DRC decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
20.
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.
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
181,500, 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 30,250 as from 1 February 2018;
b. 5% p.a. on the amount of EUR 30,250 as from 1 March 2018;
c. 5% p.a. on the amount of EUR 30,250 as from 1 April 2018;
d. 5% p.a. on the amount of EUR 30,250 as from 1 May 2018;
e. 5% p.a. on the amount of EUR 30,250 as from 1 June 2018;
f. 5% p.a. on the amount of EUR 30,250 as from 1 July 2018.
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.
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.
5.
A warning is imposed on the Respondent.
Player A, Country B / Club C, Country D
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*****
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
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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