DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed by way of circulars on 6 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 1 February 2017, 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 valid as from the date of signature until 30 November 2017.
2.
On an unspecified date, the Respondent signed a document titled “Letter of
Guarantee” (hereinafter: the debt acknowledgement), which reads as follows:
“[The Respondent] guarantees to pay to [the Claimant] in the amount of
9,000,000 for May, 9,000,000 for June until 10.07.2017 and compensation for
dismissal of a worked period in the amount of 3,157,894”.
3.
By correspondence dated 13 September 2017, the Claimant put the Respondent in
default of payment of the total amount of 7,657,894 setting a 10 days’ time limit
in order to remedy the default.
4.
On 6 October 2017 and subsequently completed on 31 October 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
7,657,894.
5.
In this regard, the Claimant explained that, in June 2017, the Respondent
informed him that it was no longer interested in his servicers, on which occasion
he received the debt acknowledgement from the Respondent. The Claimant held
that he only received 13,500,000 from the Respondent out of the total amount
acknowledged as outstanding by the Respondent. Furthermore, the Claimant
sustained that the remaining amounts in accordance with the debt
acknowledgement were to be paid until 10 July 2017 at the latest.
6.
The Claimant further asked to be awarded interest as of the respective due date
and that the Respondent be ordered to pay “all the costs related to the present
case, including legal fees”.
7.
In reply to the claim, the Respondent confirmed the “the indebtedness to the
player…in the amount of 7,657,894” and held that it “doesn’t refuse the
obligation to pay” but due to “temporary financial difficulties it is impossible to
pay at the present moment”, requesting to extend the deadline for payment until
31 December 2017.
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 October
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 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 October
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 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 DRC acknowledged that, on 1 February 2017, the Claimant
and the Respondent signed an employment contract valid as from the date of
signature until 30 November 2017. Furthermore, the DRC recalled that on an
unspecified date, the Respondent signed the debt acknowledgement by means of
which it undertook the obligation to pay to the Claimant 9,000,000 for the month
of May 2017, 9,000,000 for the month of June 2017 - both amounts payable at the
latest on 10 July 2017 -, as well as the amount of 3,157,894.
6.
The Chamber observed, that on 6 October 2017, 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 7,657,894. In this regard,
the Chamber observed that the Claimant asserted that he only received
Player A, Country B / Club C, Country D
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13,500,000 from the Respondent out of the total amount the Respondent
undertook to pay to him in accordance with the mentioned debt
acknowledgement. Moreover, the members of the Chamber further recalled that
according to the Claimant, the remaining allegedly outstanding amount in
accordance with the debt acknowledgement was to be paid until 10 July 2017 at
the latest.
7.
In this context, the DRC took particular note of the fact that, on 13 September
2017, the Claimant put the Respondent in default of payment of the total amount
of 7,657,894, setting a 10 days’ time limit 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 Chamber took into account that the Respondent, for its part,
confirmed the outstanding debt to the player in the amount of 7,657,894, as well
as its obligation in respect to the corresponding payment, and that it maintained
that it was “impossible to pay at the present moment” due to “temporary
financial difficulties”. In addition, it has remained uncontested by the Respondent
that the full amount of the debt acknowledgement was payable to the Claimant
until 10 July 2017 at the latest.
10.
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 order 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.
11.
Consequently, the members of the Chamber decided to reject the argumentation
put forward by the Respondent in its defence.
12.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of
7,657,894 corresponding to the unpaid amount in accordance with the debt
acknowledgement, amount which was due to be remitted at the latest on 10 July
2017.
13.
In addition, the Chamber 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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14.
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 7,657,894.
15.
In addition, taking into account the Claimant’s request as well as the constant
practice of the Dispute Resolution Chamber, the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on the relevant amount,
as of the day following the day on which the relevant payment fell due, until the
date of effective payment, as requested by the Claimant.
16.
Furthermore, as regards the claimed legal fees, the DRC 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 DRC decided to reject the Claimant’s request relating to legal
fees.
17.
In continuation, taking into account the consideration under number II./13. 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.
18.
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 Chamber
highlighted that, on 18 May 2017 and on 6 September 2017 (, the Respondent had
already been found to have delayed a due payment for more than 30 days
without a prima facie contractual basis in three different matters, as a result of
which a warning, a reprimand and a fine, respectively, had been imposed on the
Respondent by the DRC and the DRC judge.
19.
Consequently, the members of the Chamber established that the Respondent has
delayed a due payment for more than 30 days without a prima facie contractual
basis for the fourth time.
20.
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 more severe penalty.
21.
Bearing in mind the considerations under numbers II/18., II/19., and II/20. above,
the DRC decided that in the event that the Respondent does not pay the amount
due to the Claimant within the 30 days following the notification of the present
decision, a ban from registering any new players, either nationally or
internationally, for the next entire registration period following the notification
Player A, Country B / Club C, Country D
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of the present decision shall become effective on the Respondent in accordance
with art. 12bis par. 4 lit. d) 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, w ithin 30 day s as from the
date of notification of this decision, overdue payables in the amount of 7,657,894,
plus interest at the rate of 5% p.a. as from 11 July 2017 until the date of effective
payment.
3.
In the event that the amount due to the Claimant, plus interest, 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 request filed 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 DRC
of every payment received.
6.
In the event that the amount due to the Claimant is not paid by the Respondent
within 30 days as from the date of notification of this decision, the Respondent
shall be banned from registering any new players, either nationally or
internationally, for the next entire registration period following the notification
of the present decision.
*****
Player A, Country B / Club C, Country D
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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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