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
Tom is lav Kas alo (Croatia), member
Mario Gallav otti (Italy ), member
Joel Talav era Zárate (Paraguay ), 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 22 January 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 (hereinafter: the contract) valid as from the date of
signature until 31 May 2017.
2.
On 11 September 2015, the aforementioned parties signed a “mutual termination
and release agreement” (hereinafter: the termination agreement) according to
which the Respondent undertook to pay the amount of EUR 178,752 to the
Claimant on 15 October 2015 at the latest.
3.
By correspondence dated 4 August 2017, the Claimant put the Respondent in
default of payment of EUR 178,752 setting a 10 days’ time limit in order to
remedy the default.
4.
On 15 August 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 178,752 plus 5% interest p.a. as from the due date, 15
October 2015.
5.
Furthermore, the Claimant also requested that the Respondent reimburse “the
extrajudicial costs of EUR 5,000” and bear all “costs of the current proceeding”.
6.
In support of his claim, the Claimant explained that after his default notice, the
Respondent neither paid him any sum nor did it react to his request related to the
payment.
7.
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: 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 15 August
2017. Consequently, the 2017 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the
Procedural Rules).
2.
Subsequently, 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 (edition
2016), it is competent to deal with the matter at stake, which concerns an
Player A, Country B / Club C, Country D
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employment-related dispute with an international dimension between a Player of
Country B and a Club of Country D.
In this respect, the Chamber was eager to emphasize that contrary to the
information contained in FIFA’s letter dated 3 November 2017 by means of which
the parties were informed of the composition of the Chamber, the member Daan
de Jong and the member Stijn Boeykens refrained from participating in the
deliberations in the case at hand, due to the fact that the member Daan de Jong
has the same nationality as the Claimant and that, in order to comply with the
prerequisite of equal representation of club and player representatives, also
the member Stijn Boeykens refrained from participating and thus the Dispute
Resolution Chamber adjudicated the case in presence of five members in
accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of
Players (edition 2016).
3.
Furthermore, the DRC analyzed 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 15 August
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
DRC started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation on file. However, the Chamber emphasized
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.
Having said this, the DRC acknowledged that following the conclusion of an
employment contract on 22 January 2015, the Claimant and the Respondent
signed on 11 September 2015 a “mutual termination and release agreement”
(hereinafter: the termination agreement) according to which the Respondent
undertook to pay the amount of EUR 178,752 to the Claimant on 15 October 2015
at the latest.
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 178,752 corresponding to the total amount of the termination agreement.
7.
In this context, the DRC took particular note of the fact that, on 4 August 2017,
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 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 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.
10.
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.
11.
Having said this, the DRC acknowledged that, in accordance with the termination
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant EUR 178,752.
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 with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the DRC established that the
Respondent failed to remit to the Claimant the total amount of the termination
agreement amounting to EUR 178,752.
14.
In addition, the Chamber 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 178,752.
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. on the amount of EUR
178,752 as from the day following the due date, 16 October 2015, until the
effective date of payment.
17.
In continuation, taking into account the consideration under number II./14. 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.
18.
The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has
competence to impose sanctions on the Respondent. In this context, the Chamber
highlighted that, on 30 September 2016, the Respondent had already been found
Player A, Country B / Club C, Country D
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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.
19.
Moreover, the Chamber 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 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 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 EUR 178,752 as well as the aggravating circumstance of a repeated
offence, the DRC regarded a fine amounting to CHF 22,500 as appropriate and
hence decided to impose said fine on the Respondent.
21.
Furthermore, as regards the claimed legal expenses and procedural costs, the
Chamber referred to art. 18 par. 4 of the Procedural Rules as well as to the longstanding and well-established jurisprudence of the DRC, in accordance with which
no procedural compensation shall be awarded in proceedings in front of the
Dispute Resolution Chamber. Consequently, the DRC decided to reject the
Claimant’s request relating to legal expenses.
22.
The DRC concluded his deliberations in the present matter by establishing that
any further claim lodged by the Claimant is 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, within 30 days as from the
date of notification of this decision, overdue payables in the amount of EUR
178,752, plus interest at the rate of 5% p.a. on said amount as from 16 October
2015 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.
Any further claim lodged by the Claimant is rejected.
Player A, Country B / Club C, Country D
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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
of every payment received.
6.
The Respondent is ordered to pay a fine in the amount of
CHF 22,500. 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
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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