DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 5 December 2018,
by Philippe Diallo (France), 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 case
1.
On 15 June 2016, 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 15 June 2016 until 31 December 2017.
2.
On 7 December 2017, the Claimant and the Respondent signed a document with the name:
“Blank of Club C” (hereinafter: the debt acknowledgement), by means of which the
Respondent acknowledged to have debts towards the Claimant and undertook to pay to the
Claimant inter alia USD 8,400 until 31 March 2018.
3.
By correspondence dated 30 June 2018, the Claimant put the Respondent in default of
payment of USD 8,400 setting a 15 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 8,400 in
accordance with the debt acknowledgement.
5.
The Claimant further asks to be awarded interest of 5% p.a. as from 1 April 2018 until the
date of effective payment.
6.
In reply to the claim, the Respondent confirmed its debt in the amount of USD 8,400 towards
the player, but argued that no interest is due, since it was not agreed. Furthermore, the club
explained that “due to some economical or other factors club could not manage to perform
the obligation on time”, but would like to agree to a “repayment plan” with the Claimant in
order to repay the amount of USD 8,400.
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 6
August 2018. Consequently, the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber (edition 2018; 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 2018) 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 2018), and
considering that the present claim was lodged on 6 August 2018, the 2018 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.
5.
Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed
an employment contract valid as from 15 June 2016 until 31 December 2017.
6.
Furthermore, the DRC judge observed that, on 7 December 2017, the Claimant and the
Respondent signed a debt acknowledgement, by means of which the Respondent
acknowledged to have debts towards the Claimant and undertook to pay to the Claimant
inter alia USD 8,400 until 31 March 2018.
7.
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 8,400
corresponding to the amount set in the debt acknowledgement.
8.
In this context, the DRC judge took particular note of the fact that, on 30 June 2018, the
Claimant put the Respondent in default of payment of USD 8,400, setting a 15 days’ time
limit in order to remedy the default.
9.
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).
10.
Subsequently, the DRC judge took into account that the Respondent, for its part, confirmed
it debt towards the Claimant in the claimed amount, but argued that no interest is due, since
it was not agreed. Furthermore, the Respondent explained that “due to some economical or
other factors club could not manage to perform the obligation on time”, but the
Respondent would like to agree to a “repayment plan” with the Claimant in order to repay
the amount of USD 8,400.
11.
In this regard, the DRC judge considered that the arguments raised by the Respondent
cannot be considered a valid reason for non-payment of the monies claimed by the Claimant,
Player A, Country B, / Club C, Country D
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in other 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.
12.
Consequently, the DRC judge decided to reject the argumentation put forward by the
Respondent in its defence.
13.
On account of the aforementioned considerations, the DRC judge established that the
Respondent failed to remit the amount of USD 8,400 due to the Claimant in accordance with
the debt acknowledgement.
14.
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.
15.
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 the total amount of
USD 8,400
16.
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 8,400 as from 1 April 2018 until the date
of effective payment.
17.
In continuation, taking into account the consideration under number II./14. 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.
18.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Therefore, bearing in mind that the
Respondent duly replied to the claim of the Claimant and in the absence of the circumstance
of repeated offence, the DRC judge decided to impose a warning on the Respondent in
accordance with art. 12bis par. 4 lit. a) of the Regulations.
19.
In this respect, the DRC judge wished to highlight that a repeated offence will be considered
as an aggravating circumstance and lead to a more severe penalty in accordance with art.
12bis par. 6 of the Regulations.
III.
Decis ion of the DRC judge
1.
The claim of the Claimant, Player A, is accepted.
Player A, Country B, / Club C, Country D
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2.
The Respondent, Club C, has to pay to the Claimant overdue payables in the amount of USD
8,400 within 30 days as from the date of notification of this decision, plus 5% interest p.a. as
from 1 April 2018.
3.
In the event that the amount and 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.
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.
5.
A warning is imposed on the Respondent.
*****
Note relating to the motiv 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
Player A, Country B, / Club C, Country D
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Director Football Regulatory
Encl: CAS directives
Player A, Country B, / Club C, Country D
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