DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 17 December 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Mario Gallavotti (Italy), member
Joaquim Evangelista (Portugal), member
on the claim presented by the player,
Player 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 case
1.
On 6 February 2013, an insolvency procedure was opened against the club from
country D, Club C (hereinafter; the Respondent or the club) in compliance with
“decree 362 delivered by the court of country D (…) and a provisional official
receiver was appointed, Company E, the club’s right to self-administration being
cancelled.”
2.
The decision of the court of country D was provided by the Respondent and set
the following deadlines:
20 March 2013:
29 March 2013:
10 April 2013:
deadline to file requests for the admission of debts;
deadline for checking the debts/receivables;
deadline for the settlement of possible claims.
3.
On 29 May 2013, the court of country D confirmed the reorganization plan of the
Respondent, inter alia, establishing “the debtor to continue its activity under the
management of the official receiver and subject to the surveillance of the official
receiver” and to “set up a court day for the examination of the stage of the
reorganization procedure for September 25, 2013 and one for the confirmation of
creditors for June 26, 2013”.
4.
On 23 October 2013, the High Court of country D of Cassation and Justice moved
the “file” regarding the Respondent’s insolvency to the court of country D.
5.
On 5 September 2014, the player from country B, Player A (hereinafter; the
Claimant or the player) and the Respondent entered into an employment contract
valid as of the date of its signature until 30 June 2015.
6.
According to the contract, the Claimant was entitled to receive as remuneration
from the Respondent inter alia as follows:
-
7.
EUR 50,000 as salary payable in monthly instalments of EUR 5,000 on the 20th
day of the following month;
EUR 250 “every month (…) instead to any pretention about the club
providing him a place to live”.
Moreover, art. 9.1 of the contract stipulated the following: “Any disputes
regarding the improper execution or non-execution of the obligations
undertaken by the parties by this Agreement shall be solved amicably. If such a
solving is not possible, the parties have the right to address to Football Federation
Player A, country B / Club C, country D
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of country D/CFA/FIFA/TAS/CAS jurisdictional bodies, according to the provisions of
Football Federation of country D/Football Federation of country B/FIFA Charter
and Regulations, or to submit it to the courts of general jurisdiction”.
8.
Equally, art. 10 of the contract provided the following:
“10.1 Football regulations applicable to this agreement are the charters,
regulations and decisions of FIFA, UEFA, TAS/CAS, Football Federation of country
D or PFL as the case may be and the decisions of club’s management.
10.2 The club and the player must comply with the charters, regulations and
decisions of FIFA, UEFA, Football Federation of country D/Football Federation of
country B/PFL, in this order, in force during the period of validity of this
convention, regardless of the date of their adoption and which the parties by
signing this convention accepts as compulsory.
10.3 To the provisions of this Agreement the provisions of the Law no. 69/2000
with the further amendments and supplementing shall apply as well as the
entire law of country D including Law no. 85/2006 of insolvency”.
9.
Likewise, art. 12.1 of the contract reads: “In case of a dispute as regards the
applicable law, the law of country D shall prevail”.
10.
On 23 September 2015, the Claimant put the Respondent in default of payment
of EUR 32,950 setting a time limit of 12 days in order to remedy the default.
11.
On 19 October 2015, the Claimant lodged a claim against the Respondent in front
of FIFA requesting the total amount of EUR 32,950 comprised of EUR 31,700 for
his salaries of (part of) December 2014 as well as from January until June 2015
plus EUR 1,250 as “living expenses” as from February until June 2015.
12.
In reply to the claim, the Respondent explained that since 6 February 2013 it is in
“judicial reorganization for the time being” and that should the DRC decide that
it is competent, it is requested to order the suspension of the settlement of the
case pursuant to art. 36 of law of country D 85/2006.
13.
In this respect, the Respondent submitted a copy of Law no. 85/2006, art. 36 of
which reads: “From the date of opening the procedure is suspended of right all
the judicial actions, extrajudicial or the measures of forced enforcement for the
performance of the receivables on the debtor or his assets”.
Player A, country B / Club C, country D
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14.
In continuation, and whilst referring to art. 12.1 of the contract, the Respondent
argued that the DRC is not competent since, “according to the imperative
national legislation of country D, the dispute falls under the exclusive jurisdiction
of the court of country D”, which is, according to the Respondent, declared
competent as a consequence of the club being under insolvency proceedings.
15.
Also, and with reference to art. 10.3 of the contract, the Respondent argued that
by signing the contract, the player implicitly accepted the “exclusive subject
matter of the Tribunal of country D over potential patrimonial actions brought
against the club.”
16.
The Respondent further argued that in accordance with art. 6 of the Law no.
85/2006, “all procedures stipulated in this law (…) shall be settled by the tribunal’s
insolvency section or, if the case may be, by the commercial tribunal in the
jurisdiction of which the debtor has his registered office”. In this respect,
according to the club, the “notion” all procedures also includes “the payment
requests of the debts born after the opening of insolvency procedure”.
17.
As a result of all the above, the Respondent requested to suspend the proceedings
on the basis of art. 36 of Law 85/2006 and/or “to settle that according to the
imperative national legislation of country D (insolvency law) this dispute falls
under the jurisdiction of the Tribunal of country D.”
18.
Finally, the club asserted that any decision “in breach” of the jurisdiction of the
Tribunal of country D would be unenforceable in country D.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as the
Chamber or DRC) analysed whether it was competent to deal with the case at
hand. In this respect, it took note that the present matter was submitted to FIFA
on 19 October 2015. Consequently, the 2015 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter; the Procedural Rules) is applicable to the matter at hand (cf. article
21 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 of the Procedural
Rules and confirmed that in accordance with art. 24 par. 1 and 2 in combination
with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition
2015), the Dispute Resolution Chamber shall adjudicate on employment-related
disputes between a club and a player that have an international dimension.
Player A, country B / Club C, country D
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3.
As a consequence, the Dispute Resolution Chamber would, in principle, be
competent to decide on the present litigation which involves a player from
country B and a club from country D regarding an employment-related dispute.
4.
However, the Chamber acknowledged that the Respondent requested for the
suspension of the procedure pending the Respondent’s reorganisation procedure
and, in addition, contested the competence of the Chamber to adjudicate on the
present affair on the basis of art. 10 and art. 12.1 of the contract, alleging that
the dispute falls under the exclusive jurisdiction of the court of country D, country
D. According to the Respondent, the court of country D is declared competent as
a consequence of the club being under insolvency proceedings.
5.
Having established the above and in analysing its competence, the Chamber
acknowledged all of the above-mentioned facts as well as all the arguments and
documentation contained in the 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.
6.
In this respect, the members of the DRC first observed that the Respondent
primarily requested that the current procedure should be suspended pending the
club’s reorganisation procedure. However, the Chamber finds no reason to
suspend the current procedure in view of the fact that the Chamber is only
requested to address the recognition of the Claimant’s claim and not the
execution of a possible debt.
7.
With the above-mentioned in mind, the Chamber turned its attention to the
Respondent’s argument that not the DRC is competent to adjudicate on the
present affair but rather the court in country D, country D. With reference to art.
22 of the Regulations, the Chamber deemed it vital to outline that one of the
basic conditions that needs to be met in order to establish that another organ
than the DRC is competent to settle an employment-related dispute between a
club and a player of an international dimension, is that the jurisdiction of the
relevant national arbitration tribunal or national court derives from a clear
reference in the employment contract.
8.
Therefore, while analysing whether it was competent to hear the present matter,
the DRC considered that it should first analyse whether the employment contract
at the basis of the present dispute contained a clear and exclusive jurisdiction
clause in favour of the court of country D.
Player A, country B / Club C, country D
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9.
Having examined the content of art. 10 and art. 12.1 of the contract, the Chamber
came to the unanimous conclusion that said provisions merely refer to the
regulations and law applicable to i) the contract and ii) a potential dispute. As
such, the Chamber finds it evident that art. 10 and art. 12.1 of the contract do not
constitute a clear and exclusive jurisdiction clause in favour of the court of country
D.
10.
Furthermore, the Chamber emphasised that even more pertinent is the provision
contained in art. 9 of the contract which makes a clear reference to FIFA. Indeed,
art. 9 par. 1 of the contract stipulates: “Any disputes regarding the improper
execution or non-execution of the obligations undertaken by the parties by this
Agreement shall be solved amicably. If such a solving is not possible, the parties
have the right to address to Football Federation of country D/CFA/FIFA/TAS/CAS
jurisdictional bodies, according to the provisions of Football Federation of country
D/Football Federation of country B/FIFA Charter and Regulations, or to submit it
to the courts of general jurisdiction”. Therefore, the Chamber wished to
emphasise that by means of art. 9.1 of the contract, the parties explicitly granted
competence to FIFA to deal with a dispute deriving from the contract.
11.
As an additional remark, the Chamber wished to outline that the line of
argumentation of the club in combination with the facts of the present matter is
inconsistent and hence cannot be upheld. Indeed, at the moment the contract at
the basis of the present dispute was signed, i.e. 5 September 2014, the
Respondent had already entered into the insolvency proceedings long before. The
Chamber finds that it therefore makes little sense that the contract contained a
reference to football dispute resolution if indeed, as the Respondent claims, any
potential dispute should have been submitted to the court of country D in light of
the insolvency proceedings.
12.
In this regard, the members of the Chamber were of the unanimous opinion that,
if one would follow the reasoning of the Respondent, it would mean that the
latter agreed to introduce in the contract with the Claimant an article which it
knew beforehand could not be invoked by the Claimant, i.e. art. 9.1. This, in the
Chamber’s view, would violate the principle of good faith.
13.
On account of all the above, the Chamber established that the Respondent’s
objection towards the competence of FIFA to deal with the present matter has to
be rejected, and that the Dispute Resolution Chamber is competent, on the basis
of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to
consider the present matter as to the substance.
Player A, country B / Club C, country D
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14.
As to the substance of the matter, the members of the Chamber acknowledged
that it remained uncontested by the Respondent that it had failed to pay the
Claimant his salaries of (part of) December 2014 as well as of January until June
2015 plus his “living expenses” as from February until June 2015.
15.
As a result, the members of the Chamber concurred that the Respondent must
fulfill its obligations as per employment contract in accordance with the general
legal principle of pacta sunt servanda. Consequently, the Chamber decided that
the Respondent is liable to pay to the Claimant the total amount of EUR 32,950
comprised of EUR 31,700 for his salaries of (part of) December 2014 as well as
from January until June 2015 plus EUR 1,250 as “living expenses” as from
February until June 2015.
16.
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 relevant
payments, as of the day following the day on which the relevant payments fell
due, until the date of effective payment.
17.
Furthermore, the DRC took particular note of the fact that, on 23 September
2015, the Claimant had put the Respondent in default of payment of the
aforementioned amounts, setting a time limit of 12 days in order to remedy the
default.
18.
Consequently, the Chamber 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) and that the Respondent had thus delayed a due payment
for more than 30 days without a prima facie contractual basis.
19.
In this respect, and taking into account the above-mentioned consideration, 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.
Along these lines, the Chamber established that by virtue of art. 12bis par. 4 of
the Regulations, it has competence to impose sanctions on the Respondent.
Bearing in mind that the Respondent replied to the claim of the Claimant and in
the absence of the circumstance of repeated offence, the DRC decided to impose
Player A, country B / Club C, country D
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a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the
Regulations.
21.
In this respect, the members of the 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.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Player A, is admissible.
2.
The claim of the Claimant is accepted.
3.
The Respondent, Club C, has to pay to the Claimant the amount of EUR 32,950,
within 30 days as from the date of notification of the present decision 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 1,700 as from 21 January 2015;
b. 5% p.a. on the amount of EUR 5,000 as from 21 February 2015;
c. 5% p.a. on the amount of EUR 250 as from 1 March 2015;
d. 5% p.a. on the amount of EUR 5,000 as from 21 March 2015;
e. 5% p.a. on the amount of EUR 250 as from 1 April 2015;
f. 5% p.a. on the amount of EUR 5,000 as from 21 April 2015;
g. 5% p.a. on the amount of EUR 250 as from 1 May 2015;
h. 5% p.a. on the amount of EUR 5,000 as from 21 May 2015;
i. 5% p.a. on the amount of EUR 250 as from 1 June 2015;
j. 5% p.a. on the amount of EUR 5,000 as from 21 June 2015;
k. 5% p.a. on the amount of EUR 250 as from 1 July 2015;
l. 5% p.a. on the amount of EUR 5,000 as from 21 July 2015.
4.
In the event that the amount plus interest due to the Claimant in accordance with
the above-mentioned number 3. 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.
Player A, country B / Club C, country D
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5.
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.
6.
A warning is imposed on the Respondent.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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:
Markus Kattner
Acting Secretary General
Encl. CAS directives
Player A, country B / Club C, country D
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