DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
passed in Zurich, Switzerland, on 9 November 2017,
in the following composition:
Geoff Thom ps on (England), Chairman
Johan v an Gaalen (S outh Africa), member
S tijn Boey kens (Belgium ), member
Tom is lav Kas alo (Croatia), member
Mario Gallav otti (Italy ), member
Joel Talav era Zárate (Paraguay ), member
Daan de Jong (the Netherlands ), 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 arisen between the parties
I.
Facts of the case:
1.
On 4 January 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 (hereinafter: the contract) valid as from 1 January 2017 until
31 December 2017.
2.
In addition to that, the Claimant and the Respondent signed a contract’s schedule
(hereinafter: the schedule). According to the schedule, the Claimant was entitled
to a monthly salary of USD 10,000 that “must be paid not later than the 7th of the
following month”.
3.
Moreover, the contract’s schedule stipulates that the Respondent should provide
the Claimant a house and a car with a maximum value of 2,000 each.
4.
On 19 July 2017, the Claimant lodged a claim against the Respondent in front of
FIFA maintaining that he had just cause to terminate the contract and requesting
to be paid the total amount of USD 86,523 broken down as follows:
USD 10,000 as outstanding salary for May 2017 plus 5% interest p.a. “as of
each payment date”;
USD 70,000 as compensation for breach of contract, corresponding to the
residual value of the contract (June to December 2017) plus 5% interest
p.a. “as of the grievance”;
28,000 as “unpaid monetary value of the guaranteed benefits for the
remaining value of the contract”.
5.
Furthermore, the Claimant requested the imposition of sporting sanctions on the
Respondent.
6.
In support of his claim, the Claimant argued that he was verbally informed that he
would be deregistered from the Respondent.
7.
In continuation, the Claimant explained that through a memo dated 16 June
2017, the Respondent ordered the Claimant to return the house and car provided
by the end of June 2017. The Claimant argued that this does not comply with
what is established in the contract and “demonstrates the [Respondent´s]
intention to force the [Claimant] out of the [Respondent]” and that “the
[Respondent] was no longer interested in the [Claimant´s] services”.
8.
Furthermore, the Claimant explained that the Respondent failed to pay the
Claimant’s salary for the month of May 2017.
Player A, Country B / Club C, Country D
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9.
In accordance with the abovementioned considerations, the Claimant explained
that he had just cause to terminate the contract. Therefore, on 19 June 2017, the
Claimant sent a letter via fax to the Respondent terminating the contract with
immediate effect.
10.
Despite having been invited by FIFA to provide its comments on the present
matter, the Respondent did not answer the Claimant’s claim.
11.
Finally, and upon FIFA’s request, the Claimant informed that he did not conclude
any employment contract with another club after the termination of the contract.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on 19 July
2017. Consequently, the 2017 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the 2017
edition of the Procedural Rules).
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 in
combination with art. 22 lit. b) of the Regulations on the Status and Transfer of
Players (edition 2016), 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 from Country B and a club from
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 2 of the Regulations on the Status and Transfer of Players
(edition 2016), and considering that the present matter was submitted to FIFA on
19 July 2017, the 2016 edition of the aforementioned regulations (hereinafter:
the 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 members of the Chamber entered into the substance of the
matter, while emphasizing that, although having acknowledged all the abovementioned facts, in the following considerations it will refer only to the facts,
Player A, Country B / Club C, Country D
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arguments and documentary evidence which it considered pertinent for the
assessment of the matter at hand.
5.
Firstly, the DRC acknowledged that, on 4 January 2017, the Claimant and the
Respondent, signed an employment contract valid as from 1 January 2017 until 31
December 2017.
6.
Along with the above, the Chamber took note that the Claimant and the
Respondent signed a contract’s schedule. According to the schedule, the Claimant
was entitled to a monthly salary of USD 10,000 that “must be paid not later than
the 7th of the following month”.
7.
Moreover, the DRC observed that, on 19 June 2017, the Claimant sent a letter to
the Respondent terminating the contract with immediate effect.
8.
The DRC further observed that, on 19 July 2017, the Claimant lodged a claim
against the Respondent before FIFA requesting the payment of USD 10,000 as
outstanding remuneration, USD 70,000 as compensation for breach of contract as
well as 28,000 as unpaid benefits.
9.
In his claim, the Claimant held that his monthly salary of May 2017 had remained
outstanding. Moreover, he explained that he was verbally informed that he
would be deregistered from the Respondent and that he had to return the car
and house that were provided.
10.
In continuation, the Dispute Resolution Chamber took note that the Respondent,
for its part, failed to present its response to the claim of the player, in spite of
having been invited to do so. In this way, the Chamber considered that the
Respondent renounced its right of defence and, thus, accepted the allegations of
the Claimant.
11.
Furthermore, as a consequence of the aforementioned consideration, the
Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it
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.
12.
In continuation, the DRC acknowledged that, in accordance with the employment
contract provided by the Claimant, the Respondent was obliged to pay to the
Claimant a monthly remuneration in the amount of USD 10,000.
13.
In this respect, the DRC took into consideration that according to the Claimant,
the Respondent had failed to pay his monthly salary of May 2017 in the total
amount of USD 10,000.
Player A, Country B / Club C, Country D
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14.
Consequently, and in particular in view of the considerations under point II./11.
and II./12. above, the Chamber established that the Respondent, without any valid
reason, failed to remit to the Claimant, until 19 June 2017, date on which the
Claimant terminated the contract, the total amount of USD 16,333 corresponding
to his monthly salary of May 2017 and the pro-rata remuneration for June 2017.
15.
On account of the aforementioned considerations, and in accordance with the
general legal principle of pacta sunt servanda, the DRC decided that the
Respondent is liable to pay to the Claimant outstanding remuneration in the total
amount of USD 16,333.
16.
In addition, taking into consideration the Claimant’s request, the due dates for
the salary (cf. point II./6.) as well as the constant practice of the Dispute Resolution
Chamber in this regard, the members of the Chamber decided to award the
Claimant interest on the above-mentioned amount as follows:
a) 5% p.a. over the amount of USD 10,000 as from 8 June 2017 until the date of
effective payment;
b) 5% p.a. over the amount of USD 6,333 as from 8 July 2017 until the date of
effective payment.
17.
Having stated the above, the Chamber turned its attention to the question as to
whether the Claimant had just cause to prematurely terminate his contract with
the Respondent.
18.
In this regard, the Chamber stressed that on the basis of the assertions of the
Claimant remuneration of only one month, i.e. May 2017, would have been
outstanding. In this respect, the Chamber deemed it fit to point out that, in
general, that is, regardless of specific circumstances surrounding a matter, solely
the non-payment of one monthly remuneration cannot be considered a just cause
for a player to cease rendering his services to a club.
19.
In addition to that, the Chamber was eager to emphasise that a premature
termination of an employment contract can always only be an ultima ratio and
only a breach or misconduct which is of a certain severity justifies the termination
of a contract without prior warning. In the matter at hand, the DRC observed that
the Claimant did not give the Respondent a prior warning as he did not put the
Respondent in default, and therefore, did not allow it to remedy the alleged
breach.
20.
Moreover and referring to art. 12 par. 3 of the Procedural Rules, in accordance
with which any party claiming a right on the basis of an alleged fact shall carry
the burden of proof, the members of the Chamber took into account that the
Claimant had not presented any relevant documentary evidence corroborating his
assertion that he would be deregistered from the Respondent.
Player A, Country B / Club C, Country D
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21.
Therefore, the Chamber decided that the Claimant did not have just cause to
prematurely terminate the employment contract with the Respondent and
consequently is not entitled to receive any compensation for breach of contract.
22.
The DRC concluded its deliberations in the present matter by establishing that any
further claims lodged by the Claimant are rejected.
*****
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, outstanding remuneration in the amount of
USD 16,333.
3.
Within the sam e deadline, the Respondent has to pay to the Claimant interest
as follows:
-
5% p.a. over the amount of USD 10,000 as from 8 June 2017 until the date of
effective payment;
-
5% p.a. over the amount of USD 6,333 as from 8 July 2017 until the date of
effective payment.
4.
In the event that the amounts due to the Claimant in accordance with the abovementioned numbers 2 and 3 are 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.
5.
Any further claim lodged by the Claimant is rejected.
6.
The Claimant is directed to inform the Respondent immediately and directly of
the account number to which the remittances are to be made and to notify the
Dispute Resolution Chamber of every payment received.
*****
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 art. 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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