DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 24 November 2016,
Geoff Thom ps on (England), Chairman
Philippe Diallo (France), member
Takuy a Yam azaki (Japan), 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 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 from 1 February 2016 until 31 May 2016.
2.
In accordance with the employment contract, the Claimant was entitled to receive a
total of EUR 300,000 from the Respondent payable as follows:
a. EUR 150,000 upon signature of the contract;
b. EUR 50,000 on 31 March 2016;
c. EUR 50,000 on 30 April 2016;
d. EUR 50,000 on 31 May 2016.
3.
On 5 August 2016, the Claimant put the Respondent in default of the total amount of
EUR 150,000 pertaining to the instalments due on 31 March 2016, 30 April 2016 and
31 May 2016 respectively, setting a 10-day time limit in order to cure the default.
4.
On 16 August 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
total amount of EUR 150,000, plus 5% interest from the respective due dates,
pertaining to the following instalments:
a. EUR 50,000 on 31 March 2016;
b. EUR 50,000 on 30 April 2016;
c. EUR 50,000 on 31 May 2016.
5.
In spite of having been invited to do so by 15 September 2016 at the latest, the
Respondent only replied to the claim on 23 September 2016.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or
the 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 16 August 2016.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2015; hereinafter: the 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 members of 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 (2016
edition), the Dispute Resolution Chamber 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 Chamber 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 (2016
edition), and considering that the present claim was lodged on 16 August 2016, the
2016 edition of said regulations (hereinafter: the Regulations) is applicable to the
matter at hand as to the substance.
4.
The competence of the Dispute Resolution Chamber and the applicable regulations
having been established, the DRC entered into the substance of the matter. In this
respect, the members of the Chamber started by acknowledging all the
aforementioned facts as well as the arguments and the documentation on file. The
DRC, however, 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.
In continuation, the DRC acknowledged that the Claimant and the Respondent had
signed an employment contract valid from 1 February 2016 until 31 May 2016, in
accordance with which the Claimant was entitled to receive a total of EUR 300,000
from the Respondent, payable in four instalments.
6.
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 150,000
corresponding to three allegedly unpaid instalments of EUR 50,000 each due
respectively on 31 March 2016, 30 April 2016 and 31 May 2016.
7.
In this context, the Dispute Resolution Chamber took particular note of the fact that
on 5 August 2016, the Claimant put the Respondent in default of payment of EUR
150,000 corresponding to the aforementioned instalments, setting a ten-day time
limit to cure the default.
8.
Consequently, the members of the Chamber 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
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9.
Subsequently, the DRC observed that the Respondent, in spite of having been invited
to do so, had, for its part, failed to present its response to the claim of the Claimant
within the relevant time limit set by FIFA, i.e. 15 September 2016. In fact, the reply of
the Respondent was only received on 23 September 2016. As a result, bearing in mind
the Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3
of the Procedural Rules, the Chamber decided not to take into account the reply of
the Respondent and established that, in accordance with the aforementioned
provision, it shall take a decision on the basis of those documents on file that were
provided prior to the deadline set by FIFA, in casu, on the statements and documents
presented by the Claimant.
10.
Having said this, the DRC acknowledged that in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the Claimant
a total of EUR 300,000 payable in four instalments.
11.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC concluded that the Claimant had substantiated his claim pertaining
to overdue payables with sufficient documentary evidence.
12.
On account of the aforementioned considerations, the members of the Chamber
established that the Respondent failed to remit the Claimant’s remuneration in the
total amount of EUR 150,000 corresponding to each instalment of EUR 50,000
respectively due on 31 March 2016, 30 April 2016 and 31 May 2016.
13.
In addition, the DRC established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
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 EUR 150,000.
15.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the members of the Chamber decided that the
Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant
payments as of the day following the day on which the relevant payment fell due,
until the date of effective payment.
16.
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.
Player A, Country B / Club C, Country D
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17.
The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has
the competence to impose sanctions on the Respondent. In this context, the Chamber
highlighted that on 17 April 2015, the Respondent had already been found by the
Single Judge of the Players’ Status Committee 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. The Chamber further took into account that on 4
February 2016, the Respondent had been found by the DRC, for the second time, to
have delayed a due payment for more than 30 days without a prima facie contractual
basis without having responded to the claim, as a result of which a ban from
registering any new players for one registration period, effective in the event of nonpayment within the time limit set, was imposed on the Respondent. In continuation,
the DRC noted that on 29 July 2016, the Respondent had been found by the DRC, for
the third time, to have delayed a due payment for more than 30 days without a prima
facie contractual basis and without having responded to the claim, as a result of which
a ban from registering any new players for two entire registration periods, effective
in the event of non-payment within the time limit set, was imposed on the
Respondent.
18.
Consequently, the Chamber established that in the present matter, the Respondent is
found to have delayed a due payment for more than 30 days without a prima facie
contractual basis for the fourth time.
19.
Along these lines, 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 a more severe penalty.
20.
Moreover, the members of the Chamber wished to underline and took into account
that the Respondent has been found by the Dispute Resolution Chamber responsible
for not complying with its financial obligations towards players on various other
occasions in the recent past.
21.
Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis
paras 7 and 8 of the Regulations, the DRC decided that the Respondent shall be
banned from registering any new players, either nationally or internationally, for one
entire registration period. The execution of this registration ban is suspended during
a probation period of one year following the notification of the present decision. If
the Respondent commits another infringement during the one year probationary
period, the suspension is automatically revoked and the registration ban executed.
Player A, Country B / Club C, Country D
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22.
In continuation, the Dispute Resolution Chamber found it important to highlight that
the Respondent is involved in two other employment-related disputes in connection
with overdue payables, both of which, in addition to the present matter, have been
submitted to this Chamber on the occasion of today’s meeting. In consideration of this
circumstance, and on account of art. 12bis par. 5 of the Regulations the members of
the Chamber decided to impose, in addition to the aforementioned suspended ban
from registering any new players, a severe fine on the Respondent in accordance with
art. 12bis par. 4 lit. c) of the Regulations. Taking into consideration the above and that
the amount due is of EUR 150,000, the Dispute Resolution Chamber regarded a fine
amounting to CHF 75,000 as appropriate and hence decided to impose said fine on
the Respondent.
III.
Decis ion of the Dis pute Res olution Cham ber
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 EUR 150,000, plus
interest at the rate of 5% p.a. until the date of effective payment, as follows:
a. 5% p.a. on the amount of EUR 50,000 as from 1 April 2016;
b. 5% p.a. on the amount of EUR 50,000 as from 1 May 2016;
c. 5% p.a. on the amount of EUR 50,000 as from 1 June 2016.
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.
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 Dispute
Resolution Chamber of every payment received.
5.
The Respondent is ordered to pay a fine in the amount of
CHF 75,000. 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:
6.
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
The Respondent shall be banned from registering any new players, either nationally
or internationally, for one entire registration period. The execution of this registration
Player A, Country B / Club C, Country D
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ban is suspended during a probation period of one year following the notification of
the present decision. If the Respondent commits another infringement during the
probationary period, the suspension is automatically revoked and the registration ban
executed.
*****
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:
Marco Villiger
Deputy Secretary General
Encl: CAS directives
Player A, Country B / Club C, Country D
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