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 27 August 2016, the Player of Country B, Player A (hereinafter: Claimant)
and the Club of Country D, Club C (hereinafter: Respondent) signed an
employment contract valid as from 1 August 2016 until 31 May 2017.
2.
In accordance with the employment contract, the Respondent undertook to
remit to the Claimant “monthly payment [of] 1.180 Euro”, to be paid “between
the 5th and the 10th day of each consecutive month”.
3.
Furthermore, according to the contract, the Claimant was entitled to “other
rewards in the form of the contractual rates” as follows: EUR 4,700 at the
moment of signing the contract and EUR 4,700 “within February 2017”, plus
EUR 120 as “house rent”.
4.
By correspondence dated 19 July 2017, the Claimant put the Respondent in
default of payment of EUR 6,200 setting a time limit of 10 days in order to
remedy the default.
5.
On 20 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 EUR 6,200, corresponding to: (i) his salary of April
2017 (EUR 1,180), (ii) part of his salary of May 2017 (EUR 920), (iii) house rent of
May 2017 (EUR 100) and (iv) part of the contractual rate to be paid within
February 2017 (EUR 4,000).
6.
The Claimant further asked to be awarded 5% interest p.a. “to each payment
from the due date to the payment date for the due amount” and disciplinary
sanctions to be imposed on the Respondent.
7.
In spite of having been invited to do so, the Respondent has not replied to the
claim.
II.
Cons iderations of the DRC judge
Player A, Country B / Club C, Country D
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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 20 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 par. 2 and par. 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 20
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.
Having said this, the DRC judge acknowledged that the Claimant and the
Respondent signed an employment contract valid as from 1 August 2016 until
31 May 2017, in accordance with which the Claimant was entitled to receive
from the Respondent a monthly EUR 1,180 “between the 5th and the 10th day of
each consecutive month”, EUR 120 for accommodation and EUR 4,700 in
February 2017.
6.
The Claimant lodged a claim against the Respondent in front of FIFA,
maintaining that the Respondent had overdue payables towards him in the
total amount of EUR 6,200, corresponding to: (i) his salary of April 2017 (EUR
1,180), (ii) part of his salary of May 2017 (EUR 920), (iii) house rent of May 2017
(EUR 100) and (iv) part of the contractual rate to be paid within February 2017
(EUR 4,000).
Player A, Country B / Club C, Country D
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7.
In this context, the DRC judge took particular note of the fact that, on 19 July
2017, the Claimant put the Respondent in default of payment of the
aforementioned amount, setting a time limit of 10 days in order to remedy the
default.
8.
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).
9.
Subsequently, the DRC judge observed 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 judge 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 DRC
judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he
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 judge acknowledged that, in accordance with the
employment contract provided by the Claimant, the Respondent was obliged to
remit to the Claimant a monthly EUR 1,180 “between the 5th and the 10th day of
each consecutive month”, EUR 120 for accommodation and EUR 4,700 in
February 2017.
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 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 EUR 6,200, corresponding to: (i) his salary of April 2017 (EUR 1,180),
(ii) part of his salary of May 2017 (EUR 920), (iii) house rent of May 2017 (EUR
100) and (iv) part of the contractual rate to be paid within February 2017 (EUR
4,000).
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.
Player A, Country B / Club C, Country D
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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 total amount of EUR 6,200.
16.
In addition, taking into consideration the Claimant’s claim, the DRC judge
decided to award the Claimant interest at the rate of 5% p.a. as of the day
following the day on which the relevant payments fell due.
17.
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.
18.
The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations
he has competence to impose sanctions on the Respondent. On account of the
above and bearing in mind that the Respondent did not reply to the claim of
the Claimant, the DRC judge decided to impose a 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 6,200, the DRC judge regarded a fine
amounting to CHF 1,000 as appropriate and hence decided to impose said fine
on the Respondent.
19.
In this connection, 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 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
6,200, plus interest at the rate of 5% p.a. as follows:
a. on the amount of EUR 1,180 as of 11 May 2017 until the date of effective
payment;
b. on the amount of EUR 920 as of 11 June 2017 until the date of effective
payment;
Player A, Country B / Club C, Country D
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c. on the amount of EUR 100 as of 1 June 2017 until the date of effective
payment;
d. on the amount of EUR 4,000 as of 1 March 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.
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 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
Player A, Country B / Club C, Country D
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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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