DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC)
passed in Zurich, Switzerland on 5 November 2019,
in the following composition,
Geoff Thom ps on (England), Chairman
Roy Verm eer (the Netherlands ), member
Joaquim Ev angelis ta (Portugal), member
Todd Durbin (US A), member
Juan Bautis ta Mahiques (Argentina), 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 24 August 2018, the player of Country B, Player A (hereinafter: Claimant), and
the club of Country D, Club C (hereinafter: Respondent) signed an employment
contract (hereinafter: the contract) valid as from 16 August 2018 until 31 May 2019.
2.
In accordance with the contract, the Respondent undertook to pay to the Claimant
the total amount of EUR 900,000 payable in ten (10) instalments due on the last day
of each month from August 2018 until May 2019, as well as a monthly
accommodation allowance of EUR 800.
3.
By correspondence dated 14 January 2019, the Claimant put the Respondent in
default of payment of EUR 184,000 corresponding to 2 salaries and 5 monthly
accommodation allowances, setting a time limit of 15 days in order to remedy the
default.
4.
By correspondence dated 11 June 2019, the Claimant put the Respondent in default
for the second time, for a payment of EUR 277,200 corresponding to 3 salaries and
nine (9) monthly accommodation allowances, setting a time limit of ten (10) days in
order to remedy the default.
5.
On 27 June 2019,the Claimant lodged a claim against the Respondent in front of
FIFA, which was amended on 12 July 2019 asking that the Respondent be ordered to
pay to pay to him overdue payables in the amount of EUR 277,200 corresponding to
the following:
a) EUR 270,000 corresponding to the salaries of February 2019 to April 2019;
b) EUR 7,200 corresponding to 9 monthly accommodation allowance;
And, in addition to the aforementioned amount, the Claimant also requested the
payment of the amount of EUR 3,500 corresponding to legal fees.
6.
The Claimant further asks to be awarded interest of 5% per annum as from 28
February 2019 until the date of effective payment.
7.
In reply to the claim, the Respondent provided the payment receipts of six (6)
monthly salaries i.e. as from August 2018 until January 2019, which are not part of
the Claimant’s claim.
8.
Regarding the monthly accommodation allowance requested, the Respondent
argued that the allocation for August 2018 was not due in full since the contract
started from 16 August 2018.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 27
June 2019. 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).
2.
Subsequently, the DRC 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 October
2019), 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, the DRC confirmed that in accordance with
art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players
(editions June 2019 & October 2019), and considering that the present claim was
lodged on 27 June 2019, the June 2019 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 DRC emphasised that in the following
considerations the DRC will refer only to the facts, arguments and documentary
evidence, which the DRC 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 on 24 August 2018, valid from 16 August 2018 until
31 May 2019, in accordance with which the Claimant was entitled to receive from
the Respondent, inter alia, the total amount of EUR 900,000 payable in ten (10)
instalments on the last day of each month from August 2018 until May 2019, as well
as a monthly accommodation allowance of EUR 800.
6.
The Claimant lodged a claim and further, amended the claim against the
Respondent in front of FIFA, maintaining that the Respondent has overdue payables
towards him in the total amount of EUR 277,200 which corresponds to the monthly
salaries of February 2019 to April 2019; as well as 9 monthly accommodation
allowances.
Player A, Country B / Club C, Country D
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7.
In this context, the DRC took particular note of the fact that, on 11 June 2019, the
Claimant put the Respondent in default of payment of the total amount of EUR
277,200, setting a time limit of ten (10) days 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, only
provided the payment receipt for the 6 monthly salaries which were not part of the
Claimant’s claim and therefore, its payment is undisputed by the Claimant.
10.
Further, in relation to the monthly accommodation allowance requested, the
Respondent argued that the allocation for August 2018 was not due in full since the
contract started from 16 August 2018.
11.
In respect of the argument raised by the Respondent for the accommodation
allowance of August 2018, the DRC noted that the contract does not provide on
whether the accommodation allowance is due for a fully or partially worked month
and only provides for a full amount to be received per month for this concept,
consequently, the DRC concluded that the Claimant is entitled to the full month
accommodation allowance for August 2018.
12.
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.
13.
Consequently, the DRC 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
277,200 corresponding to the monthly salaries of February 2019 to April 2019; as
well as 9 monthly accommodation allowances.
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.
Player A, Country B / Club C, Country D
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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 277,200.
17.
In addition, taking into consideration the Claimant’s request, the DRC decided to
award the Claimant 5% interest p.a. on the amount of EUR 277,200, on each of the
relevant payment(s) as of the day following the day on which the relevant
payment(s) fell due, until the date of effective payment.
18.
In addition, as regards the claimed legal fees, the Chamber referred to art. 18 par. 4
of the Procedural Rules as well as to its long-standing and well-established
jurisprudence, in accordance with which no procedural compensation shall be
awarded in proceedings in front of the Dispute Resolution Chamber. Consequently,
the Chamber decided to reject the Claimant’s request relating to legal fees.
19.
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 facie
contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the
Regulations.
20.
The DRC established that in 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 several occasions within the past 2 years, 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, diverse sanctions have been
imposed on the Respondent by the relevant deciding bodies.
21.
Moreover, the DRC 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.
22.
Having said that, to start with, the DRC took note that the Respondent is involved in
one other dispute in connection with the overdue payables (case ref: XXX) which, in
addition to the present matter, has been submitted to this Chamber today and in
which sanctions have been imposed on the Respondent.
23.
Bearing in mind the above and taking into account art. 12bis par. 5 of the
Regulations, according to which sanctions provided for in par. 4 of art. 12bis may be
applied cumulatively, the DRC decided to impose a reprimand as well as a
proportionally more severe fine on the Respondent in accordance with art. 12bis par.
4 lit. b) and lit. c) of the Regulations, respectively. On account of the above and
taking into consideration the amount due of EUR 277,200, the DRC regarded a fine
Player A, Country B / Club C, Country D
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amounting to CHF 40,000 as appropriate and hence decided to impose said fine on
the Respondent.
24.
Furthermore, taking into account the consideration under number II./3. above, the
Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with its decision, the pertinent FIFA deciding body shall also rule on the
consequences deriving from the failure of the concerned party to pay the relevant
amounts of outstanding remuneration and/or compensation in due time.
25.
In this regard, the DRC pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from
registering any new players, either nationally or internationally, up until the due
amounts are paid and for the maximum duration of three entire and consecutive
registration periods.
26.
Therefore, bearing in mind the above, the DRC decided that, in the event that the
Respondent does not pay the amount due to the Claimant within 45 days as from
the moment in which the Claimant, following the notification of the present
decision, communicates the relevant bank details to the Respondent, a ban from
registering any new players, either nationally or internationally, for the maximum
duration of three entire and consecutive registration periods shall become effective
on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.
27.
Finally, the DRC recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance
with art. 24bis par. 3 of the Regulations.
III.
Decis ion of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Player A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant overdue payables in the amount
of EUR 277,200 as overdue payables, plus 5% interest p.a. until the date of effective
payment as follows:
a. 5% p.a. on the amount of EUR 800 as from 1 September 2018;
b. 5% p.a. on the amount of EUR 800 as from 1 October 2018;
c. 5% p.a. on the amount of EUR 800 as from 1 November 2018;
d. 5% p.a. on the amount of EUR 800 as from 1 December 2018;
e. 5% p.a. on the amount of EUR 800 as from 1 January 2019;
f. 5% p.a. on the amount of EUR 800 as from 1 February 2019;
g. 5% p.a. on the amount of EUR 90,800 as from 1 March 2019;
h. 5% p.a. on the amount of EUR 90,800 as from 1 April 2019;
Player A, Country B / Club C, Country D
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i.
5% p.a. on the amount of EUR 90,800 as from 1 May 2019.
3.
Any further claim of the Claimant is rejected.
4.
A reprimand is imposed on the Respondent.
5.
The Claimant is directed to inform the Respondent, immediately and directly,
preferably to the postal address as indicated on the cover letter of the present
decision, of the relevant bank account to which the Respondent must pay the
amounts mentioned under point III./2. above.
6.
The Respondent shall provide evidence of payment of the due amount in accordance
with point III./2. above to FIFA to the e-mail address [email protected], duly translated
into one of the official FIFA languages (English, French, German, Spanish).
7.
In the event that the amount plus interest due in accordance with point III./2. above
is not paid by the Respondent w ithin 45 day s as from the notification by the
Claimant of the relevant bank details to the Respondent, the Respondent shall be
banned from registering any new players, either nationally or internationally, up
until the due amount is paid and for the maximum duration of three entire and
consecutive registration periods (cf. art. 24bis of the Regulations on the Status and
Transfer of Players).
8.
The ban mentioned in point III./7. above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
9.
The Respondent is ordered to pay a fine in the amount of
CHF 40,000. The fine is to be paid w ithin 45 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
10.
In the event that the amount due in accordance with point III./2. above plus interest
is still not paid by the end of the ban of three entire and consecutive registration
periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
Player A, Country B / Club C, Country D
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*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the
DRC. Where such decisions contain confidential information, FIFA may decide, at the request
of a party within five days of the notification of the motivated decision, to publish an
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Players’ Status Committee and the Dispute Resolution Chamber).
Note relating to the m otiv ated decision (legal rem edy ):
According to art. 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. 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.
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:
Emilio García Silvero
Chief Legal & Compliance Officer
Player A, Country B / Club C, Country D
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