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
between the parties in connection with overdue payables
I.
Facts of the cas e
1.
On 16 February 2015, the Player of Country B, Player A (hereinafter: the Claimant) and
the Club of Country D, Club C (hereinafter: the Respondent) concluded an
employment contract, by means of which an apparent previous 2 years’ employment
contract was extended “for two extra seasons (i.e. 2015/2016 and 2016/2017)”.
2.
On 3 July 2016, the Claimant and the Respondent concluded a “Protocol of
Agreement” (hereinafter: the termination agreement), by means of which, inter alia,
the employment contract was terminated and the Respondent undertook to pay the
Claimant the following amounts:
- EUR 180,000, at the date of the conclusion of the agreement;
- EUR 121,400 per month, from August 2016 until May 2017 (i.e. 10 months).
3.
By correspondence dated 3 July 2017, the Claimant put the Respondent in default of
payment of EUR 971,200, setting a 10 days’ time limit in order to remedy the default.
4.
On 20 July 2017, completed on 26 July 2017, 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 971,200, corresponding to 8 unpaid monthly
instalments stipulated in the termination agreement, plus 5% interest p.a. as from
“the 30th day following the default notice” sent to the Respondent.
5.
According to the Claimant, the Respondent only paid him the first amount of EUR
180,000 established in the aforementioned agreement, as well as two instalments of
EUR 121,400 each.
6.
In spite of having been invited to do so, the Respondent has not replied to the claim.
II.
Cons iderations of the Dis pute Res olution Cham ber
1.
First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or 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 20 July 2017.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee
and the Dispute Resolution Chamber (edition 2017; 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 referred to art. 3 of the Procedural Rules and confirmed that
in accordance with art. 24 par. 1 and 2 in conjunction with art. 22 lit. b of the
Regulations on the Status and Transfer of Players (edition 2016) it 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 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 (edition
2016), and considering that the present claim was lodged on 20 July 2017, 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 and the applicable regulations having been established,
the DRC entered into the substance of the matter. In this respect, the Chamber started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it 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 observed that, according to the Claimant, on 16 February
2015, he concluded an employment contract the Respondent, by means of which a
previous 2 years’ employment contract was extended “for two extra seasons (i.e.
2015/2016 and 2016/2017)”.
6.
Subsequently, the Chamber noted that, on 3 July 2016, the Claimant and the
Respondent concluded a “Protocol of Agreement” (hereinafter: the termination
agreement), by means of which, inter alia, the aforementioned employment contract
was terminated and the Respondent undertook to pay the Claimant the following
amounts:
- EUR 180,000, at the date of the conclusion of the agreement;
- EUR 121,400 per month, from August 2016 until May 2017 (i.e. 10 months).
7.
In continuation, the DRC duly noted that 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 overdue payables in the amount of EUR 971,200,
corresponding to 8 unpaid monthly instalments stipulated in the termination
agreement.
8.
In this context, the DRC took particular note of the fact that, by correspondence dated
3 July 2017, the Claimant put the Respondent in default of payment of EUR 971,200,
setting a 10 days’ time limit in order to remedy the default.
Player A, Country B / Club C, Country D
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9.
Consequently, the DRC 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 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 considered that the Respondent renounced its right to defence
and thus accepted the allegations of the Claimant.
11.
Furthermore, as a consequence of the aforementioned consideration, the DRC
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.
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 as to the aforementioned remuneration with sufficient
documentary evidence.
13.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit the Claimant’s aforementioned remuneration in the total
amount of in the amount of EUR 971,200, corresponding to 8 unpaid monthly
instalments, as stipulated in the termination agreement.
14.
In addition, the DRC established that the Respondent had delayed a due payment for
more than 30 days without a prima facie contractual basis.
15.
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 971,200.
16.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the Chamber decided that the Respondent must
pay to the Claimant interest of 5% p.a. as from “the 30th day following the default
notice”, i.e. as from 2 August 2017.
17.
In continuation, taking into account the previous considerations, 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.
18.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. Bearing in mind that the
Player A, Country B / Club C, Country D
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Respondent did not reply to the claim of the Claimant, the Chamber decided to impose
a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.
On this basis and taking into consideration the circumstances of the current matter
and the amount in dispute, the DRC regarded a fine amounting to CHF 30,000 as
appropriate and hence decided to impose said fine on the Respondent.
19.
In this respect, the DRC 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.
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 971,200, plus
interest at the rate of 5% p.a. as from 2 August 2017 until the date of effective
payment.
3. In the event that the amount plus 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 Dispute
Resolution Chamber of every payment received.
5. The Respondent is ordered to pay a fine in the amount of CHF 30,000. 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:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
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 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:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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