DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 28 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 25 September 2017, the clubs of Country D, Club E and Club C
(hereinafter: the Respondent), signed a loan agreement to which the player
of Country B, Player A (hereinafter: the Claimant), was a party and pursuant
to which he was loaned to the Respondent as from 1 August 2017 until 31
July 2018.
2.
In accordance with the loan agreement, the Respondent undertook to pay
the Claimant EUR 708,000 “on or before 30/09/2017” and a monthly salary
of EUR 166,000, “on or before the end of each calendar month from
1/08/2017 until 31/07/2018”.
3.
Following a previous correspondence dated 28 June 2018, on 26 September
2018, the Claimant put the Respondent in default of payment of EUR
1,704,000 in writing, setting a time limit of 10 days in order to remedy the
default.
4.
On 20 September 2018, the Claimant lodged a claim against the Respondent
in front of FIFA asking that the Respondent be ordered to pay him overdue
payables in the amount of EUR 1,704,000, corresponding to: (i) the advance
of payment of EUR 708,000 and (ii) his salaries as from February until July
2018, i.e. EUR 166,000 each month for 6 months.
5.
Furthermore, in his claim, the Claimant mentioned that he had received
from the Respondent the amount of EUR 996,000, which would cover his
salaries as from August 2017 until January 2018 only.
6.
The Claimant further asked to be awarded 5% interest p.a. as of the “day
following the respective due date until the date of effective payment”.
7.
In spite of having been invited to do so, the Respondent did not reply to the
claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to:
the Chamber or DRC) analysed whether it was competent to deal with the
matter at hand. In this respect, the DRC took note that the present matter
was submitted to FIFA on 20 September 2018. Consequently, the Rules
Governing the Procedures of the Players’ Status Committee and the Dispute
Player A, Country B / Club C, Country D
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Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2.
Subsequently, the members of 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), the Dispute Resolution Chamber 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 Chamber 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 20 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 Chamber and the applicable regulations having
been established, the DRC entered into the substance of the matter. In this
respect, the Chamber started by acknowledging all the above-mentioned
facts as well as the arguments and the documentation on file. However, the
DRC 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 Club E and the Respondent
signed a loan agreement to which the Claimant was a party and according
to which the Claimant was loaned to the Respondent as from 1 August 2017
until 31 July 2018.
6.
Furthermore, the Chamber observed that, in accordance with the loan
agreement, the Respondent undertook to remit to the Claimant EUR
708,000 “on or before 30/09/2017” as well as a monthly salary of EUR
166,000, “on or before the end of each calendar month from 1/08/2017 until
31/072018”.
7.
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 1,704,000, corresponding to: (i) the advance of
payment of EUR 708,000 and (ii) his salaries as from February until July 2018,
i.e. EUR 166,000 each month for 6 months.
Player A, Country B / Club C, Country D
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8.
With his claim, the Claimant further asked to be awarded 5% interest p.a. as
of the “day following the respective due date until the date of effective
payment”.
9.
The DRC further took note that, in his claim, the Claimant mentioned that
he received from the Respondent the amount of EUR 996,000, which covers
his salaries as from August 2017 until January 2018 only.
10.
In this context, the members of the Chamber took particular note of the fact
that, following a previous correspondence dated 28 June 2018, on 26
September 2018, the Claimant put the Respondent in default of payment of
the aforementioned amount, setting a time limit of 10 days in order to
remedy the default.
11.
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).
12.
Subsequently, the Chamber observed 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.
13.
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.
14.
Having said this, the DRC acknowledged that, in accordance with the loan
agreement provided by the Claimant, the Respondent was obliged to remit
to the Claimant a monthly salary of EUR 166,000 as well as an advance of
payment of EUR 708,000.
15.
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.
16.
On account of the aforementioned considerations, the members of the
Chamber established that the Respondent failed to remit to the Claimant’s
Player A, Country B / Club C, Country D
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remuneration in the total amount of EUR 1,704,000, corresponding to: (i)
the advance of payment of EUR 708,000, (ii) his salaries as from February
until July 2018, i.e. EUR 166,000 each month for 6 months.
17.
In addition, the DRC established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
18.
Consequently, the Chamber 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 1,704,000.
19.
In addition, taking into consideration the Claimant’s claim, the DRC decided
to award the Claimant interest at the rate of 5% p.a. on the relevant
instalments as of the first day of the month following the month the
payment is related to.
20.
In continuation, taking into account the consideration under number II./17.
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.
21.
The Chamber established that, by virtue of art. 12bis par. 4 of the
Regulations, it has competence to impose sanctions on the Respondent. In
this context, the DRC highlighted that, on 2 March 2018, the Respondent
had already been found to have delayed a due payment for more than 30
days without a prima facie contractual basis, as a result of which a warning
had been imposed on the Respondent by the Single Judge of the Players’
Status Committee.
22.
Moreover, the members of the Chamber 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 a 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 Dispute Resolution Chamber decided to impose a more severe
sanction on the Respondent in accordance with art. 12bis par. 4 lit. c) of the
Regulations. Furthermore, taking into consideration the amount due of EUR
1,704,000 as well as the aggravating circumstance of a repeated offence, the
DRC regarded a fine amounting to CHF 30,000 as appropriate and hence
decided to impose said fine on the Respondent.
Player A, Country B / Club C, Country D
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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, w ithin 30 day s as from
the date of notification of this decision, overdue payables in the amount of
EUR 1,704,000, plus interest at the rate of 5% p.a. as follows:
a. on the amount of EUR 708,000 as of 1 October 2017 until the date of
effective payment;
b. on the amount of EUR 166,000 as of 1 March 2018 until the date of
effective payment;
c. on the amount of EUR 166,000 as of 1 April 2018 until the date of
effective payment;
d. on the amount of EUR 166,000 as of 1 May 2018 until the date of
effective payment;
e. on the amount of EUR 166,000 as of 1 June 2018 until the date of
effective payment;
f. on the amount of EUR 166,000 as of 1 July 2018 until the date of
effective payment;
g. on the amount of EUR 166,000 as of 1 August 2018 until the date of
effective payment.
3.
In the event that the amount and interest 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 DRC of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 30,000. 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:
Player A, Country B / Club C, Country D
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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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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