DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 15 December 2017,
by Jon New m an (USA), DRC judge,
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 17 January 2016, the Claimant and the Respondent signed an employment
contract, valid as from 17 January 2016 until 10 June 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay to
the Claimant inter alia an advance payment in the amount of USD 6,000, an amount
of USD 12,000, to be paid in ‘monthly salaries throughout the season’, as well as ‘a
round trip ticket’.
3.
By correspondence dated 24 January 2017, the Claimant put the Respondent in
default of payment of USD 15,000, consisting of USD 14,500 outstanding
remuneration and USD 500 for the costs of a flight ticket, setting a 10 days’ time
limit in order to remedy the default.
4.
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 USD
15,004, corresponding to USD 6,000 as outstanding advance payment, USD 8,500 as
outstanding salaries and USD 504 as the costs of a flight ticket.
5.
The Claimant further asks to be awarded interest of 5% p.a. on the amount of USD
14,500 as from 10 June 2016.
6.
The Respondent submitted its response to the claim after notification of the closure
of the investigation in the present matter.
II.
Cons iderations of the DRC judge
1.
First of all, the DRC judge analysed whether he was competent to deal with the
matter at hand. In this respect, he took note that the present matter was submitted
to FIFA on 21 September 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 DRC judge referred to art. 3 par. 2 and par. 3 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) he 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.
Player A, Country B / Club C, Country D
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3.
Furthermore, the DRC judge 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 Transfer of Players
(edition 2016), and considering that the present claim was lodged on 21 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 judge and the applicable regulations having been
established, the DRC judge entered into the substance of the matter. In this respect,
the DRC judge started by acknowledging all the above-mentioned facts as well as
the arguments and the documentation on file. However, the DRC judge emphasised
that in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the
matter at hand.
7.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid between 17 January 2016 until 10
June 2016, in accordance with which the Claimant was entitled to receive from the
Respondent, inter alia, an advance payment in the amount of USD 6,000, an amount
of USD 12,000, to be paid in ‘monthly salaries throughout the season’, as well as ‘a
round trip ticket’.
5.
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 USD
15,004, corresponding to the amount of USD 6,000 as an outstanding advance
payment, the amount of USD 8,500 as outstanding salaries and the amount of USD
504 as the costs of a flight ticket.
8.
In this context, the DRC judge took particular note of the fact that, on 24 January
2017, the Claimant put the Respondent in default of payment of the amount of USD
15,000, consisting of USD 14,500 outstanding remuneration and USD 500 for the
costs of a flight ticket, setting a 10 days’ time limit in order to remedy the default.
6.
Consequently, the DRC judge 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).
7.
Subsequently, the DRC judge observed that the reply of the Respondent was
received after notification of the closure of the investigation of the matter at hand.
As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the DRC’s
constant jurisprudence in this regard, the DRC judge decided not to take into
account the reply of the Respondent and established that, in accordance with art. 9
par. 3 of the Procedural Rules, he shall take a decision upon the basis of those
Player A, Country B / Club C, Country D
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documents on file that were provided prior to the closure of the investigation-phase,
in casu, upon the statements and documents presented by the Claimant.
8.
Furthermore, as a consequence of the aforementioned consideration, the DRC judge
concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.
9.
Having said this, the DRC judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to pay
to the Claimant an advance payment in the amount of USD 6,000, an amount of USD
12,000, to be paid in ‘monthly salaries throughout the season’, as well as ‘a round
trip ticket’.
10.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge concluded that the Claimant had substantiated his claim
pertaining to overdue payables with sufficient documentary evidence.
11.
On account of the aforementioned considerations, the DRC judge established that
the Respondent failed to remit the Claimant’s remuneration in the total amount of
USD 15,004, corresponding to the amount of USD 6,000 as an outstanding advance
payment, the amount of USD 8,500 as outstanding salaries and the amount of USD
504 as the costs of a flight ticket.
12.
In addition, the DRC judge established that the Respondent had delayed a due
payment for more than 30 days without a prima facie contractual basis.
13.
Consequently, the DRC judge 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 USD 15,004.
14.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the DRC judge decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD
14,500 as from 10 June 2016 until the date of effective payment.
15.
In continuation, taking into account the consideration under number II./12. above,
the DRC judge 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.
16.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. In this context, the DRC
judge highlighted that, on 7 June 2017, the Respondent had already been found to
Player A, Country B / Club C, Country D
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have delayed a due payment for more than 30 days without a prima facie
contractual basis and without the Respondent having responded to the relevant
claim, as a result of which a fine had been imposed on the Respondent by the DRC
judge.
17.
Moreover, the DRC judge 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 more severe penalty.
18.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as
well as the considerations under numbers II./16. and II./17. above, the DRC judge
decided to impose a more severe fine on the Respondent in accordance with art.
12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the
amount due of USD 15,004, as well as the aggravating circumstance of a repeated
offence, the DRC judge regarded a fine amounting to CHF 3,000 as appropriate and
hence decided to impose said fine on the Respondent.
III.
Decis ion of the DRC judge
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 USD 14,500,
plus interest at the rate of 5% p.a. as from 11 June 2016 until the date of effective
payment.
3.
In the event that the amount due to the Claimant in accordance with the abovementioned number 2. 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 Respondent has to pay to the Claimant, w ithin 30 day s as from the date of
notification of this decision, the reimbursement of the costs of a flight ticket in the
amount of USD 504.
5.
In the event that the amount due to the Claimant in accordance with the abovementioned number 4. is not paid by the Respondent within the stated time limit,
interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time
limits and the present matter shall be submitted, upon request, to the FIFA
Disciplinary Committee for consideration and a formal decision.
6.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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7.
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 judge
of every payment received.
8.
The Respondent is ordered to pay a fine in the amount of
CHF 3,000. 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
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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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