F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 18 May 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 18 May 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

John Bramhall (England), member

Takuya Yamazaki (Japan), member

Mohamed Al Saikhan (Saudi Arabia), member

Wouter Lambrecht (Belgium), member

on the claim presented by the player,

Player 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 case

1. On an unknown date, the player of Country B, Player A (hereinafter: Claimant), and the club of Country D, Club C (hereinafter: Respondent) signed an employment contract valid for the 2015/2016 season.

2. According to the information contained in the Transfer Matching System (TMS), the 2015/2016 season in Country D started on 30 July 2015 and ended on 20 May 2016.

3. In accordance with the employment contract, the Respondent undertook to pay to the Claimant the total amount of USD 220,000 net as follows:

- USD 22,000 after the signature and delivery of the ITC;

- USD 22,000 on 5 August 2015;

- USD 17,600 as monthly salary during 10 months, payable on the 5th day of the month between September 2015 and June 2016.

4. Furthermore, the contract contains the following clauses regarding bonus payments:

- “If the team will qualified to Continental Champions League or will be champion in Cup of Country D 2015-2016 the player should receive amount of USD net 10.000 as a bonus”.

- “If the player plays more the %50 of All games in League of Country D 2015-2016 he will receive USD net 30.000 more from club in of the session. (5 th May 2016)”.

5. Articles 8.2 and 8.3 of the contract read as follows: “In case of a dispute between both parties, the issue will be taken to Football Federation of Country D and only decision of Football Federation of Country D and it’s disciplinary committee is valid. If any party is not satisfied with the decision, the issue will be taken to FIFA and any decision taken by FIFA is final”.

6. By correspondence dated 3 November 2016, the player put the club in default of payment of the amount of USD 72,325 corresponding to a part of the salary of April 2016, the full salary of May 2016 and bonuses, setting a time limit of 10 days in order to remedy the default.

7. On 2 December 2016, and completed on 7 January 2017, the player lodged a claim in front of FIFA against the club asking that the Respondent be ordered to pay to him overdue payables in the total amount of USD 72,325, detailed as follows:

- USD 14,725 corresponding to a part of the April 2016 salary plus 5% interest p.a. as of 5 May 2016;

- USD 17,600 corresponding to the salary of May 2016 salary plus 5% interest p.a. as of 5 June 2016;

- USD 10,000 corresponding to the bonus for qualification to the Continental Champions League plus 5% interest p.a. as of 5 June 2016; - USD 30,000 corresponding to the bonus regarding league appearances plus 5% interest p.a. as of 5 June 2016.

In addition, the player requested to be reimbursed for his legal expenses.

8. In his arguments, the player held that the above-mentioned contractually agreed payments remained outstanding.

9. Furthermore, the player argued being entitled to the claimed bonuses in relation with the contract.

10. In its reply, the club contested the competence of FIFA to deal with the claim lodged by the player, arguing that the Football Federation of Country D and its disciplinary committee are competent to deal with the matter at hand and that the player should have submitted his claim in front of said body. Furthermore, the club asserted that only after a decision of the Football Federation of Country D was taken, the “issue will be sent to FIFA”.

11. As to the substance, the club rejected the player’s claim and argued having paid 85% of the player’s remuneration.

12. The club argued that “considering the costs made by the player in different restaurants, fee of his membership and the cost of his contract registration in League organization of Country D, and the player penalties”, the amount of USD 18,380 remained outstanding.

13. Furthermore, the club pointed out that the player failed to pay “tax of his salary”, what caused “severe problems” for the club.

14. The player, for his part, insisted that FIFA’s Dispute Resolution Chamber is competent to deal with the present matter. In particular, the player held that the arbitration clause of the contract contains no clear reference and refers to FIFA as deciding body as well.

15. Moreover, the player pointed out that the club failed to provide evidence that an allegedly existing national arbitration body meets the requirements of the FIFA Regulations.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the 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 2 December 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber, would, in principle, be 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. In continuation, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding body on the basis of arts. 8.2 and 8.3 of the employment contract invoking an alleged jurisdiction of the Football Federation Disciplinary Committee of Country D.

4. In this regard, the DRC noted that the Claimant rejected such position and insisted that FIFA has competence to deal with the present matter.

5. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2015 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that needs to be met in order to establish that another organ than the DRC can settle an employment-related dispute between a club and a player of an international dimension, is that the competence of the relevant arbitration tribunal derives from a clear reference in the employment contract.

7. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a clear and exclusive arbitration clause in favour of an NDRC in Country D.

8. Subsequently, the Chamber referred to the articles 8.2 and 8.3 of the employment contract, which stipulates that “In case of a dispute between both parties, the issue will be taken to Football Federation of Country D and only decision of Football Federation of Country D and it’s disciplinary committee is valid. If any party is not satisfied with the decision, the issue will be taken to FIFA and any decision taken by FIFA is final”.

9. Taking into account the wording of the above-mentioned clauses, the DRC concluded that the employment contract at the basis of the present dispute does not contain contained a clear and exclusive arbitration clause in favour of a national dispute resolution body, since it refers to the Football Federation of Country D in general, its disciplinary committee and even to FIFA.

10. For the sake of completeness, the members of the Chamber wished to point out that FIFA is not the second instance of resolutions rendered at national level.

11. What is more, the members of the Chamber acknowledged that the Respondent has failed to submit documentation corroborating that an independent arbitration tribunal in compliance with the requirements of the FIFA regulations has been established in Country D.

12. On account of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to deal with the present matter as to the substance.

13. Furthermore, the DRC 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 2 December 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

14. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the members of the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

16. Having said this, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid for the 2015/2016 season, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of USD 220,000 net as follows:

- USD 22,000 after the signature and delivery of the ITC;

- USD 22,000 on 5 August 2015;

- USD 17,600 as monthly salary during 10 months, payable on the 5th day of the month between September 2015 and June 2016.

15. 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 72,325 corresponding to a part of the salary for April 2016, the full salary for May 2016 as well as bonuses established in the contract.

16. In this context, the DRC took particular note of the fact that, on 3 November 2016, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit expiring on 13 November 2016 in order to remedy the default.

17. Consequently, the Chamber 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).

18. Subsequently, the members of the DRC took into account that the Respondent, for its part, held having paid 85% of the player’s remuneration and that “considering the costs made by the player in different restaurants, fee of his membership and the cost of his contract registration in League organization of Country D, and the player penalties”, according to the club the amount of USD 18,380 remained outstanding.

19. The Chamber took note of the documents submitted by the Respondent in support of its argumentation. In this respect the DRC emphasized that according to art. 12 par. 3 of the Procedural Rules any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Furthermore, the members of the Chamber referred to art. 9 par. 1 lit. e of the Procedural Rules, according to which all documents of relevance to the dispute, must be translated into one of the four official FIFA languages. In this regard, due to the failure of the Respondent to submit the necessary translations, the DRC did not take into account the untranslated documents.

20. Moreover, the Chamber noted that several payment receipts submitted by Respondent were not related to the period in question.

21. On account of the above, and in view of the fact that the Respondent did not submit corroborating evidence to support its allegations, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

22. Consequently, the Chamber decided to reject the argumentation put forward by the Respondent in its defence.

23. Furthermore, 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 outstanding bonuses with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules.

24. On account of the aforementioned considerations, the members of the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 72,325 corresponding to to a part of the salary for April 2016, the full salary for May 2016 as well as bonuses established in the contract.

25. In addition, the DRC established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

26. 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 USD 72,325.

27. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of the day following the day on which the payments included in the total amount of USD 72,325 fell due.

28. In continuation, taking into account the consideration under number II./25. 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.

29. The Dispute Resolution Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. Therefore, bearing in mind that the Respondent duly replied to the claim of the Claimant and in the absence of the circumstance of repeated offence, the DRC decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

30. In this respect, the members of the Chamber 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. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days from the date of notification of this decision, overdue payables in the amount of USD 72,325 plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 6 May 2016 on the amount of USD 14,725;

b. 5% p.a. as of 6 June 2016 on the amount of USD 57,600.

3. In the event that the amount 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. A warning is imposed on the Respondent.

*****

Note relating to the motivated decision (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: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives