DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed on 1 December 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Mario Gallav otti (Italy ), 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 a non-specified date, the Player of Country B, Player A (hereinafter:
Claimant), and the Club of Country D, Club C (hereinafter: Respondent), signed
an employment contract valid for the 2016-2017 season (hereinafter: the
contract), “until the last official match”.
2.
In accordance with art. 8 of the contract, the Respondent undertook to pay to
the Claimant a remuneration of EUR 120,000, as follows:
a)
EUR 24,000 as signing-on fee on the date of signature;
b)
EUR 96,000 in ten instalments of EUR 9,600, payable on the 15th day of
each month as from August 2016 until April 2017 and on 1 May 2017.
3.
Furthermore, according to art. 9-1 of the contract, the Claimant was entitled to
a bonus of EUR 15,000 in case he played fifteen official matches with the club,
payable once the player “has completed his 20th match”.
4.
By correspondence dated 31 July 2017, the Claimant put the Respondent in
default of payment of EUR 96,170, composed of EUR 81,170 for outstanding
salaries and EUR 15,000 for the bonus under art. 9-1 of the contract, setting a
10 days’ time limit in order to remedy the default.
5.
On 18 July 2017, and completed on 30 August 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 total amount of EUR 96,170
plus 5% interest p.a., as follows:
a)
EUR 965 as remainder of the signing-on fee, plus interest as of 2 July
2016;
b)
EUR 1,430 as remainder of the monthly salary of August 2016, plus
interest as of 16 August 2016;
c)
EUR 1,975 as remainder of the monthly salary of September 2016, plus
interest as of 16 September 2016;
d)
EUR 9,600 for the monthly salary of October 2016, plus interest as of 16
October 2016;
e)
EUR 9,600 for the monthly salary of November 2016, plus interest as of 16
November 2016;
f)
EUR 9,600 for the monthly salary of December 2016, plus interest as of 16
December 2016;
g)
EUR 9,600 for the monthly salary of January 2017, plus interest as of 16
January 2017;
Player A, Country B / Club C, Country D
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h)
i)
j)
k)
l)
EUR 9,600 for the monthly salary of February 2017, plus interest as of 16
February 2017;
EUR 9,600 for the monthly salary of March 2017, plus interest as of 16
March 2017;
EUR 9,600 for the monthly salary of April 2017, plus interest as of 16 April
2017;
EUR 9,600 for the monthly salary of May 2017, plus interest as of 16 May
2017.
EUR 15,000 for the bonus under art. 9-1 of the contract, plus interest as of
8 April 2017. In this regard, the Claimant enclosed information taken
from the internet regarding his appearances with the club.
6.
The Claimant further asked that the Respondent be ordered to pay a
contribution to his legal expenses in the amount of EUR 5,000.
7.
In spite of having been invited to do so, the Respondent has not replied 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 Chamber took note that the present matter was
submitted to FIFA on 18 July 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).
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 2016), the Dispute Resolution Chamber is
competent to deal with the matter at stake, which concerns an employmentrelated 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, he confirmed that, in
accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Player A, Country B / Club C, Country D
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Transfer of Players (edition 2016), and considering that the present claim was
lodged on 18 July 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 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 members of the Chamber acknowledged that the
Claimant and the Respondent signed an employment contract valid for the
season 2016-2017, in accordance with which the Claimant was entitled to
receive from the Respondent a salary of EUR 120,000 and a bonus of EUR
15,000 once the player “has completed his 20th match”.
6.
In continuation, the DRC took note 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 96,170, corresponding to
EUR 81,170 for outstanding salaries and to EUR 15,000 for the bonus provided
in the contract.
7.
In this context, the members of the Chamber took particular note of the fact
that, on 31 July 2017, the Claimant put the Respondent in default of payment
of the aforementioned amount, setting a ten days’ time limit in order to
remedy the default.
8.
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).
9.
Subsequently, the DRC took into account 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 members of the Chamber considered
that the Respondent renounced its right to defence and, thus, accepted the
allegations of the Claimant.
Player A, Country B / Club C, Country D
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10.
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.
11.
Having said this, the Chamber acknowledged that, in accordance with the
contract, the Respondent was obliged to pay to the Claimant the amount of
EUR 120,000 for the salaries, where EUR 24,000 were payable as signing-on fee
and EUR 96,000 in ten instalments payable on the 15th day of each month as
from August 2016 until April 2017 and on 1 May 2017. In this regard, the
members of the Chamber recalled that the Claimant maintained that the
Respondent did not provide him with the payment of outstanding salaries in
the amount of EUR 81,170. Furthermore, the Chamber acknowledged that,
pursuant to the contract, the Respondent was obliged to pay to the Claimant
the amount of EUR 15,000 for the bonus, once the player “has completed his
20th match”. In this respect, from the documentation submitted by the
Claimant, the members of the Chamber took note that the Claimant played his
20th match with the Respondent on 20 April 2017.
12.
Taking into account the documentation presented by the Claimant in support
of his petition, the Chamber concluded that the Claimant had substantiated his
claim pertaining to overdue payables with sufficient documentary evidence in
accordance with art. 12 par. 3 of the Procedural Rules. That is, the Chamber
concluded that the Claimant presented sufficient documentation relating to
his claim for the outstanding salaries and the bonus provided by the contract.
13.
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 96,170.
14.
In addition, the DRC established that the Respondent had delayed a due
payment for more than thirty days without a prima facie contractual basis.
15.
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 96,170.
16.
In continuation, taking into account the Claimant’s request as well as the
constant practice of the Dispute Resolution Chamber, the Chamber decided
Player A, Country B / Club C, Country D
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that the Respondent must pay to the Claimant interest on the amount of EUR
96,170, as follows:
a) 5% p.a. as of 2 July 2016 on the amount of EUR 965;
b) 5% p.a. as of 16 August 2016 on the amount of EUR 1,430;
c) 5% p.a. as of 16 September 2016 on the amount of EUR 1,975;
d) 5% p.a. as of 16 October 2016 on the amount of EUR 9,600;
e) 5% p.a. as of 16 November 2016 on the amount of EUR 9,600;
f) 5% p.a. as of 16 December 2016 on the amount of EUR 9,600;
g) 5% p.a. as of 16 January 2017 on the amount of EUR 9,600;
h) 5% p.a. as of 16 February 2017 on the amount of EUR 9,600;
i) 5% p.a. as of 16 March 2017 on the amount of EUR 9,600;
j) 5% p.a. as of 16 April 2017 on the amount of EUR 9,600;
k) 5% p.a. as of 21 April 2017 on the amount of EUR 15,000;
l) 5% p.a. as of 16 May 2017 on the amount of EUR 9,600.
17.
In addition, as to the claimed legal expenses in the amount of EUR 5,000, the
Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding 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 in this respect.
18.
Furthermore, taking into account the consideration under number II./14.
above, the Chamber referred to art.12bis par. 2 of the Regulations, which
stipulates that any club found to have delayed a due payment for more than
thirty days without a prima facie contractual basis may be sanctioned in
accordance with art. 12bis par. 4 of the Regulations.
19.
In this regard, the Chamber established that, by virtue of art. 12bis par. 4 of
the Regulations, it has competence to impose sanctions on the Respondent.
Therefore, and bearing in mind that the Respondent did not reply to the claim
of the Claimant, the DRC 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 EUR 96,170, the members of the
Chamber regarded a fine amounting to CHF 15,000 as appropriate and hence
decided to impose said fine on the Respondent.
20.
In this respect, 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.
Player A, Country B / Club C, Country D
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21.
The members of the Chamber concluded their deliberations by rejecting any
further claim of the Claimant.
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, w ithin 30 day s as from
the date of notification of this decision, overdue payables in the amount of
EUR 96,170, plus interest at the rate of 5% p.a. as follows:
a) 5% p.a. as of 2 July 2016 on the amount of EUR 965;
b) 5% p.a. as of 16 August 2016 on the amount of EUR 1,430;
c) 5% p.a. as of 16 September 2016 on the amount of EUR 1,975;
d) 5% p.a. as of 16 October 2016 on the amount of EUR 9,600;
e) 5% p.a. as of 16 November 2016 on the amount of EUR 9,600;
f) 5% p.a. as of 16 December 2016 on the amount of EUR 9,600;
g) 5% p.a. as of 16 January 2017 on the amount of EUR 9,600;
h) 5% p.a. as of 16 February 2017 on the amount of EUR 9,600;
i) 5% p.a. as of 16 March 2017 on the amount of EUR 9,600;
j) 5% p.a. as of 16 April 2017 on the amount of EUR 9,600;
k) 5% p.a. as of 21 April 2017 on the amount of EUR 15,000;
l) 5% p.a. as of 16 May 2017 on the amount of EUR 9,600.
3.
In the event that the amount plus 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.
Any further claim lodged by the Claimant is rejected.
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.
The Respondent is ordered to pay a fine in the amount of
CHF 15,000. The fine is to be paid w ithin 30 day s of notification of the
Player A, Country B / Club C, Country D
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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 Dispute Resolution Chamber:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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