DRC Overdue Payables
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC) judge
passed on 15 December 2017,
by Jon New m an (USA), DRC judge,
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 August 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 (hereinafter: the contract), valid as from 1 August 2016 until 30 May 2017.
2.
According to the contract, the Claimant was entitled to a monthly remuneration in
the amount of 13,125, payable at the end of each month.
3.
Moreover, in accordance with the contract the Claimant was entitled, inter alia, to the
following payments:
- 26,250, “after the first half of the season in 1/2/2017”;
- 26,250, “end the season. In 30/5/2017”.
4.
By correspondence dated 4 August 2017, the Claimant put the Respondent in default
of payment of 143,125 relating to salaries as from November 2016 until May 2017, the
second instalment that fell due on 30 May 2017 as well as match bonuses, granting a
deadline of 10 days in order to remedy the default.
5.
On 22 August 2017, the Claimant lodged a claim against the Respondent in front of
FIFA asking that the latter be ordered to pay to him the following overdue payables:
- 91,875, corresponding to salaries as from November 2016 until May 2017 (i.e.
13,125*7);
- 26,250, corresponding to the payment due on 30 May 2017 (cf. point 3 above).
6.
In its reply, the Respondent considered that the amounts stated by the Claimant are
not correct, and explained that only the amount of 105,000 remains outstanding,
detailed as follows:
- 13,125*6 = 78,750, corresponding to the Claimant’s salary from December 2016 until
May 2017;
- 26,250.
7.
Furthermore, the Respondent stated that it paid the Claimant’s salary for November
2016 and submitted within the deadline granted by FIFA a receipt written in Language
of Country D without any translation.
8.
In his replica, the Claimant argued that the receipts provided by the Respondent are
written in Language of Country D.
9.
Moreover, the Claimant explained that the amount of 13,000 he received in November
2016, the receipt for which he signed, are related to a series of match bonuses but not
to his salary.
10.
In its final comments, the Respondent considered that, since the Claimant is a National
of Country B, he should understand Language of Country D and that, consequently,
he was aware of the contents of all the documents provided by it. The Respondent
further pointed out that all salary receipts looked like the November 2016 one and
that the Claimant never complained about the language and the receipts before,
which demonstrates that his allegation that the amount was for “the rewards of the
first round of the league” is incorrect.
Player A, Country B / Club C, Country D
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II.
Cons iderations of the DRC judge
1.
First of all, 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 22 August 2017. Consequently, the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: the
Procedural Rules) are applicable to the matter at hand (cf. art. 21 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 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 22 August 2017, 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 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.
In this respect, the DRC judge noted that, on 1 August 2016, the Claimant and the
Respondent signed an employment contract, valid as from the date of signature until
30 May 2017 and that, according to said contract, the Claimant was entitled to a
monthly remuneration in the amount of 13,125, payable at the end of each month.
6.
Moreover, the DRC judge noted that, in accordance with the contract, the Claimant
was entitled, inter alia, to the following payments:
- 26,250, “after the first half of the season in 1/2/2017”;
- 26,250, “end the season. In 30/5/2017”.
7.
In continuation, the DRC judge 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 of 118,125, which he calculated on the basis
of the Claimant’s request to receive the amounts of 91,875, corresponding to his
salaries as from November 2016 until May 2017 (i.e. 13,125*7) and 26,250,
corresponding to the payment due on 30 May 2017 (cf. point I. 3 above).
Player A, Country B / Club C, Country D
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8.
In this context, the DRC judge took particular note of the fact that, on 4 August 2017,
the Claimant put the Respondent in default of payment of the total amount of
143,125 setting a 10 days’ time limit in order to remedy the default.
9.
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).
10.
Subsequently, the DRC judge took into account the Respondent’s reply to the claim.
In this respect, the DRC judge first observed that the Respondent effectively
acknowledged that the amount of 105,000 remained outstanding, as follows:
- 13,125*6 = 78,750, corresponding to the player’s salary from December 2016 until
May 2017;
- 26,250.
11.
In view of the contents of the reply of the Respondent, the DRC judge understood
that, from this point, it can be established that the Claimant would be entitled to
receive at least the amount of 105,000 as overdue payables, since this was
acknowledged by the Respondent and was supported by the contract concluded
between the parties.
12.
Notwithstanding the above, the DRC judge observed that there is still a disparity
between the total amount requested by the Claimant (i.e. 118,125) and the amount
that the Respondent acknowledged that was still outstanding (i.e. 105,000).
13.
Therefore, the DRC judge considered at this stage that it is relevant for the assessment
of the matter at hand to examine all the documentation provided by the Respondent
in support of its arguments.
14.
In relation to the documentation provided by Respondent, the DRC judge recalled the
basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural
Rules, according to which a party claiming a right on the basis of an alleged fact shall
carry the respective burden of proof. Similarly, the DRC judge referred to art. 9 par. 1
lit. e) of the Procedural Rules which stipulates that all documents of relevance to the
dispute shall be submitted in the original version as well as translated into one of the
official FIFA languages.
15.
In this context, the DRC judge noted that, although having been informed, in
accordance with art. 9 par. 1 lit. e of the Procedural Rules, that all documents of
relevance to the dispute must be submitted, if need be, with a translation into one of
the four official FIFA languages (English, Spanish, French and German), the
Respondent did not provide within the established deadline a translated version of
the documents it enclosed to its submission in Language of Country D only. In view of
the foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC
judge decided that it could not take into account the relevant documents which were
not translated into an official FIFA language.
Player A, Country B / Club C, Country D
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16.
In addition, the DRC judge noted that the Respondent submitted additional
documentary evidence on 9 December 2017, i.e. after the closure of the investigationphase by FIFA on 5 December 2017. As a result, and bearing in mind the constant
jurisprudence of the DRC in this regard and in application of art. 9 par. 4 of the
Procedural Rules, he decided not to take into account said documents and established
that, in accordance with the aforementioned provision, he 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 within the
established deadlines.
17.
Consequently, the DRC judge considered that the Respondent did not present
sufficient documentary evidence which could corroborate that it paid the entire
amount that was requested by the Claimant.
18.
On the other hand, the DRC judge took into account the documentation presented by
the Claimant in support of his petition and concluded that the Claimant had
substantiated his claim pertaining to overdue payables as to the aforementioned
remuneration with sufficient documentary evidence.
11.
On account of the aforementioned considerations, the DRC judge established that the
Respondent failed to remit the Claimant’s aforementioned remuneration in the total
amount of 118,125 corresponding to his salaries as from November 2016 until May
2017 and the payment due on 30 May 2017.
12.
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.
13.
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 118,125.
14.
In continuation, taking into account the previous considerations, the DRC judge
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.
15.
The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent replied to the claim of the Claimant and that the Respondent cannot be
held as a repeat offender, the DRC judge decided to impose a warning on the
Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.
16.
In this respect, 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.
Player A, Country B / Club C, Country D
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III.
Decis ion of the DRC judge
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 118,125.
3. In the event that the amount plus interest due to the Claimant is not paid by the
Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as
from the expiry of the aforementioned deadline and 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 DRC judge of
every payment received.
5. A warning is imposed on the Respondent.
*****
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 DRC judge:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player A, Country B / Club C, Country D
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