DRC Overdue Payables
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed on 28 February 2017,
by Philippe Diallo (France), DRC judge,
on the claim presented by the player,
Player 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 5 July 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 1 July 2016 until 30 June 2018.
2.
On 24 August 2016, the Claimant and the Respondent signed a termination
agreement, by means of which the Respondent undertook to pay to the Claimant
EUR 20,000, by no later than 1 October 2016.
3.
By correspondence dated 2 November 2016, the Claimant put the Respondent in
default of payment of EUR 20,000 setting a 10 days’ time limit in order to remedy
the default.
4.
On 25 November 2016, and completed on 15 December 2016, 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 20,000 corresponding
to the amount established in the termination agreement.
5.
The Claimant further asks to be awarded interest of 5% p.a. as of the due date and
that the Respondent be ordered to pay legal and procedural costs.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter: 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 25 November 2016.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules)
are applicable to the matter at hand (cf. art. 21 of the 2015 and 2017 editions of the
Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 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
Player A, Country B / Club C, Country D
Page 2 of 6
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 2016), and considering that the present claim was lodged on 25 November
2016, 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.
5.
Having said this, the DRC judge acknowledged that after the Claimant and the
Respondent signed an employment contract valid 1 July 2016 until 30 June 2018, on
24 August 2016, the parties signed a termination agreement by means of which the
parties agreed on the mutual termination of the contract and in which it was
established that the Respondent would pay the Claimant EUR 20,000, by no later
than 1 October 2016
6.
In this respect, the DRC judge took note that on 25 November 2016, 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 20,000
corresponding to the amount established in the termination agreement concluded
by the parties on 24 August 2016.
7.
In this context, the DRC judge took particular note of the fact that, on 2 November
2016, the Claimant put the Respondent in default of payment of the
aforementioned amount, 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 have
granted a deadline of at least ten days for the debtor club to comply with its
financial obligation(s).
Player A, Country B / Club C, Country D
Page 3 of 6
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
termination agreement provided by the Claimant, the Respondent was obliged to
pay to the Claimant EUR 20,000 by no later than 1 October 2016.
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
EUR 20,000 corresponding to the amount agreed on the termination agreement.
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 EUR 20,000.
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 EUR
20,000 as from 2 October 2016 until the date of effective payment.
17.
Furthermore, as regards the claimed legal expenses, the DRC judge 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 judge decided to reject the Claimant’s request relating to legal expenses.
18.
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
Player A, Country B / Club C, Country D
Page 4 of 6
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.
19.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he
has competence to impose sanctions on the Respondent. On account of the above
and bearing in mind that the Respondent did not reply to the claim of the Claimant,
the DRC judge 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 20,000, the DRC judge regarded a fine amounting to CHF 5,000
as appropriate and hence decided to impose said fine on the Respondent.
20.
In this connection, the DRC judge 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.
Decision 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, within 30 days as from the
date of notification of this decision, overdue payables in the amount of EUR 20,000,
plus interest at the rate of 5% p.a. as from 2 October 2016 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.
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 judge
of every payment received.
Player A, Country B / Club C, Country D
Page 5 of 6
6.
The Respondent is ordered to pay a fine in the amount of
CHF 5,000. The fine is to be paid within 30 days of notification of the present
decision to FIFA to the following bank account:
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 motivated decision (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
Page 6 of 6