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 10 June 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the
Club of Country D, Club C (hereinafter: the Respondent) allegedly signed an
employment contract valid as from 1 July 2016 until 30 December 2016.
2.
According to clause 2 of the employment contract, the Claimant would be entitled to
a monthly remuneration of USD 3,500.
3.
On an unknown date, the Respondent issued a duly signed and stamped letter with
the following contents (hereinafter: the debt acknowledgement):
“[The Respondent] agrees that the [Claimant] have a pending two months' salary (sum
of 7.500 USD) to [the Claimant] (…)
And also the club agrees to finish all the pending payments before 01/01/2017 (…)”
4.
By correspondence dated 29 May 2017, the Claimant put the Respondent in default
of payment of the total amount of USD 7,500, setting a 15 days’ time limit in order to
remedy the default.
5.
On 4 October 2017, subsequently completed on 8 October 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 USD 7,500, corresponding to the
amount mentioned in the letter issued by the Respondent (cf. point I./3. above) plus
5% interest p.a. as from 1 January 2017.
6.
In addition, the Claimant requested the payment of the legal costs for the amount of
USD 500 and the imposition of sanctions against the Respondent.
7.
After expiry of the time limit set by FIFA, the Claimant submitted an unsolicited
correspondence.
8.
In this regard, the Claimant explicitly rejected the Respondent’s apparent offer to
settle its outstanding liabilities, and requested to continue with the procedure before
FIFA amending his claim to the amount of USD 8,000.
9.
The Respondent provided its comments to the claim after the expiration of the
deadline granted by FIFA to respond.
Player A, Country B / Club C, Country D
Page 2 of 6
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 4 October 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).
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 4 October 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 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 wished to highlight that the unsolicited correspondence
received from the Claimant after expiry of the time limit (cf. points I./7. and I./8. above)
cannot be taken into account in accordance with art. 9 par. 3 of the Procedural Rules.
6.
Having said this, the DRC judge acknowledged that the parties allegedly signed an
employment contract valid as from 1 July 2016 until 30 December 2016 and that,
according to clause 2 of said contract, the Claimant would be entitled to a monthly
remuneration of USD 3,500.
7.
Moreover, the DRC observed that the Respondent issued a letter, duly stamped and
signed, with the following contents:
“[The Respondent] agrees that the [Claimant] have a pending two months' salary (sum
of 7.500 USD) to [the Claimant] (…)
And also the club agrees to finish all the pending payments before 01/01/2017 (…)”
Player A, Country B / Club C, Country D
Page 3 of 6
8.
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 USD 7,500 corresponding to outstanding
salaries stipulated in the debt acknowledgement issued by the Respondent.
9.
In this context, the DRC judge took particular note of the fact that, on 29 May 2017,
the Claimant put the Respondent in default of payment of the aforementioned
amount, setting a 15 days’ time limit in order to remedy the default.
10.
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).
11.
Subsequently, the DRC judge observed that the Respondent had, for its part, failed to
present its response to the claim of the Claimant within the relevant time limit set by
FIFA. As a result, in application of art. 9 par. 3 of the Procedural Rules, the DRC judge
decided not to take into account the reply of the Respondent 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.
12.
Taking into account the documentation presented by the Claimant in support of his
petition, the DRC judge 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 judge established that the
Respondent failed to remit the Claimant’s remuneration in the total amount of USD
7,500 corresponding to the payment which the Respondent committed to settle on 1
January 2017.
14.
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.
15.
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 amount of USD 7,500.
16.
In addition, taking into account the Claimant’s request as well as the constant practice
of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must
pay to the Claimant interest of 5% p.a. on the amount of USD 7,500 as from the day
following the date on which the relevant payment fell due until the date of effective
payment.
Player A, Country B / Club C, Country D
Page 4 of 6
17.
Subsequently, the DRC judge decided to reject the Claimant’s claim pertaining to legal
costs in accordance with art. 18 par. 4 of the Procedural Rules and the respective
longstanding jurisprudence of the Dispute Resolution Chamber in this regard.
18.
In continuation, taking into account the consideration under number II./14. above, 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.
19.
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 did not reply to the claim of the Claimant within the time limit set by
FIFA, the DRC judge 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 judge
regarded a fine amounting to CHF 1,000 as appropriate and hence decided to impose
said fine on the Respondent.
20.
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.
III.
Decis ion of the DRC judge
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, overdue payables in the amount of USD 7,500, plus 5%
interest p.a. over said amount as from 2 January 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 DRC judge
of every payment received.
Player A, Country B / Club C, Country D
Page 5 of 6
5.
The Respondent is ordered to pay a fine in the amount of CHF 1,000. 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
*****
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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