DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 15 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 28 May 2014, 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 30 June 2014 until
30 June 2017.
2.
On 11 July 2016, the Respondent and the Club of Country E, Club F, signed a
“Temporary Transfer Agreement” in accordance with which the Claimant was
loaned to the Club of Country E from 15 July 2016 until 30 June 2017. According
to clause 3.2 of this loan agreement, during the duration of the loan “Club C will
solely responsible for paying all the Player’s wages, benefits and bonuses…”.
3.
On the same date, 11 July 2016, the Claimant and the Respondent signed a
document referred to as “Agreement” (hereinafter: the agreement). According to
clause 2 a) of the agreement, during the loan period the Respondent undertook
to pay to the Claimant the amount of EUR 1,200,000 in 12 instalments of EUR
100,000 each “with first payment due on 30 July 2016 and the last on 30 June
2017”.
4.
In addition, clause 2 b) of the agreement stipulates that the Claimant was entitled
to receive EUR 300,000 before 30 May 2017 if, inter alia, he “...play at least 50 %
of Club F matches during the loan period”.
5.
By correspondence dated 25 August 2017, the Claimant put the Respondent in
default of payment of EUR 900,000 setting a 10 days’ time limit in order to
remedy the default.
6.
On 6 September 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 amount of EUR 900,000 consisting of:
EUR 300,000 corresponding to the amount stipulated in clause 2 b) of the
agreement;
EUR 100,000 consisting of half of the amount of the instalments for December
2016 and January 2017 (EUR 50,000 each);
EUR 500,000 for the full amount of the instalments as from February until
June 2017 (EUR 100,000 each).
7.
The Claimant further asks to be awarded EUR 15,210 as interest of 5% p.a. as
from the respective due dates of each payment until 1 September 2017 as well as
5% interest p.a. on the amount of EUR 900,000 as from 1 September 2017 until
the date of effective payment.
8.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
Player A, Country B / Club C, Country D
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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 6
September 2017. Consequently, the 2017 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of
the Procedural Rules).
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
2016), 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 2016) and considering that the present claim was lodged on 6 September
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 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 emphasized
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 30 June 2014 until 30 June 2017.
6.
Furthermore, the members of the Chamber observed that, on 11 July 2016, the
Respondent and the Club of Country E, Club F signed a “Temporary Transfer
Agreement” in accordance with which the Claimant was loaned to the Club of
Country E as from 15 July 2016 until 30 June 2017 and, during the loan, “[the
Respondent] will solely responsible for paying all the [Claimant’s] wages, benefits
and bonuses…”.
7.
In continuation, the Chamber noted that, on 11 July 2016, the Claimant and the
Respondent signed the agreement, according to which during said loan period
the Respondent undertook to pay to the Claimant the amount of EUR 1,200,000 in
12 instalments of EUR 100,000 each “with first payment due on 30 July 2016 and
the last on 30 June 2017”.
Player A, Country B / Club C, Country D
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8.
According to the agreement the Claimant was further entitled to receive EUR
300,000 before 30 May 2017 if, inter alia, he “...play at least 50 % of Club F
matches during the loan period”.
9.
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 900,000 consisting of the aforementioned EUR 300,000 as well as EUR 600,000
relating to half of the December 2016 and January 2017 instalments and the
instalments for February until June 2017.
10.
In this context, the DRC took particular note of the fact that, on 25 August 2017,
the Claimant put the Respondent in default of payment of the amount of EUR
900,000, setting a 10 days’ time limit 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 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 Chamber considered that the Respondent
renounced its right to defence.
13.
Furthermore, as a consequence of the aforementioned consideration, the DRC
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 agreement
provided by the Claimant, the Respondent was obliged to pay to the Claimant the
amount of EUR 1,200,000 in 12 instalments of EUR 100,000 each with the first
payment due on 30 July 2016 and the last one on 30 June 2017.
15.
Furthermore, taking into account the documentation presented by the Claimant
in support of his petition, the DRC concluded that the Claimant had not fully
substantiated his claim pertaining to overdue payables with pertinent
documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules.
That is, the Claimant did not present supporting documentation relating to his
claim pertaining to the amount of EUR 300,000 stipulated in clause 2 b) of the
agreement, payment of which was conditioned upon the Claimant playing in at
least 50% of Club F’s matches during the loan period. Consequently, the Chamber
decided to reject this part of the Claimant’s claim.
16.
On account of the aforementioned considerations and the documentary evidence
provided by the Claimant, the DRC established that the Respondent failed to
remit the Claimant’s remuneration in the total amount of EUR 600,000 consisting
of half of the amount of the instalments for December 2016 and January 2017 (i.e.
Player A, Country B / Club C, Country D
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EUR 50,000 each) and EUR 500,000 for the full amount of the instalments as from
February until June 2017 (i.e. EUR 100,000 each).
17.
In addition, the Chamber established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
18.
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 600,000.
19.
In addition, taking into consideration the Claimant’s request, the members of the
Chamber decided to award the Claimant interest on the above-mentioned
amount as follows:
- 5% p.a. over the amount of EUR 50,000 as from 1 January 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 50,000 as from 1 February 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 100,000 as from 1 March 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 100,000 as from 1 April 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 100,000 as from 1 May 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 100,000 as from 1 June 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 100,000 as from 1 July 2017 until 1
September 2017;
- 5% p.a. over the amount of EUR 600,000 as from 1 September 2017 until the
date of effective payment.
20.
Moreover, the DRC decided that any further request filed by the Claimant is
rejected.
21.
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.
22.
The DRC established that in 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 600,000, the DRC regarded a fine amounting to CHF 25,000 as appropriate
and hence decided to impose said fine on the Respondent.
Player A, Country B / Club C, Country D
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23.
In this respect, 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.
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 overdue payables in the amount of EUR
600,000 to the Claimant w ithin 30 day s as from the date of notification of this
decision.
3.
The Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, interest of 5% p.a. as follows:
-
5% p.a. over the amount of EUR 50,000 as from 1 January 2017 until 1
September 2017;
5% p.a. over the amount of EUR 50,000 as from 1 February 2017 until 1
September 2017;
5% p.a. over the amount of EUR 100,000 as from 1 March 2017 until 1
September 2017;
5% p.a. over the amount of EUR 100,000 as from 1 April 2017 until 1
September 2017;
5% p.a. over the amount of EUR 100,000 as from 1 May 2017 until 1
September 2017;
5% p.a. over the amount of EUR 100,000 as from 1 June 2017 until 1
September 2017;
5% p.a. over the amount of EUR 100,000 as from 1 July 2017 until 1
September 2017;
5% p.a. over the amount of EUR 600,000 as from 1 September 2017 until the
date of effective payment.
4.
In the event that the amount plus interest due to the Claimant are 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
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.
7.
The Respondent is ordered to pay a fine in the amount of
CHF 25,000. 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:
UBS Zurich
Player A, Country B / Club C, Country D
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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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