DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 14 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 cas e
1.
On 5 January 2016, the player of Country B, Player A (hereinafter: the Claimant or
the player), and the club of Country D, Club C (hereinafter: the Respondent or the
club) signed an employment contract valid as from 1 January 2016 until 31
December 2016.
2.
In accordance with the employment contract, the Respondent undertook to pay
to the Claimant inter alia, a monthly salary of 80,000 in the currency of Country D.
3.
By correspondence dated 29 September 2018, the Claimant put the Respondent in
default of payment of 200,000 in the currency of Country D setting a 10 days’ time
limit in order to remedy the default.
4.
On 12 October 2018, the Claimant lodged a claim against the Respondent before
FIFA asking that the Respondent be ordered to pay him overdue payables in the
amount of 200,000 in the currency of Country D corresponding to:
- 40,000 in the currency of Country D as half of the outstanding salary of October
2016;
- 80,000 in the currency of Country D as outstanding salary of November 2016;
- 80,000 in the currency of Country D as outstanding salary of December 2016.
5.
The Claimant further asks to be awarded “all applicable interests”.
6.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
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 12 October 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).
Player A, Country B / Club C, Country D
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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.
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 12 October
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 1 January 2016 until 31
December 2016, in accordance with which the Claimant was entitled to receive
from the Respondent, inter alia, a monthly salary of 80,000 in the currency of
Country D.
6.
The Claimant lodged a claim against the Respondent before FIFA, maintaining
that the Respondent has overdue payables towards him in the total amount of
200,000 in the currency of Country D corresponding to: 40,000 in the currency of
Country D as half of the outstanding salary of October 2016, 80,000 in the
currency of Country D as outstanding salary of November 2016 and 80,000 in the
currency of Country D as outstanding salary of December 2016.
7.
In this context, the DRC judge took particular note of the fact that, on 29
September 2018, the Claimant put the Respondent in default of payment of the
aforementioned amounts, setting a 10 days’ time limit in order to remedy the
default.
8.
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
Player A, Country B / Club C, Country D
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have granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
9.
Subsequently, the DRC judge 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 DRC judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
10.
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.
11.
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 a monthly salary of 80,000 in the currency of Country D.
12.
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.
13.
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 200,000 in the currency of Country D corresponding to:
- 40,000 in the currency of Country D as half of the outstanding salary of October
2016;
- 80,000 in the currency of Country D as outstanding salary of November 2016;
- 80,000 in the currency of Country D as outstanding salary of December 2016.
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
overdue payables in the total amount of 200,000 in the currency of Country D.
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
200,000 in the currency of Country D as from the date the claim was lodged, i.e.
12 October 2018, until the date of effective payment.
Player A, Country B / Club C, Country D
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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. In this context, the DRC
judge highlighted that, on 3 July 2017, the Respondent had already been found
to 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.
19.
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 a more severe penalty.
20.
Bearing in mind that the Respondent did not reply to the claim of the Claimant as
well as the considerations under numbers II./18 and II./19. 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 200,000 in the currency of Country D as well as the aggravating
circumstance of a repeated offence, the DRC judge regarded a fine amounting to
CHF 1,500 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 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 200,000 in
the currency of Country D, plus interest at the rate of 5% p.a. as from 12 October
2018 until the date of effective payment.
3.
In the event that the amount 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.
Player A, Country B / Club C, Country D
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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.
The Respondent is ordered to pay a fine in the amount of
CHF 1,500. 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
Player A, Country B / Club C, Country D
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For the DRC judge:
Omar Ongaro
Football Regulatory Director
Encl.: CAS directives
Player A, Country B / Club C, Country D
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