F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 19 May 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 19 May 2017,

by Philippe Diallo (France), DRC judge,

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 26 November 2015, 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 26 November 2015 until 30 October 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia the following payments:

- USD 40,000 ‘cash in City E – Country D’;

- USD 20,000 ‘on May 2016’;

- USD 4,000 as ‘monthly salary payable in end of each month during the period covered by this contract’.

Furthermore, article 5 of the contract stipulates the following: ‘The [Respondent] agreed to provide 2 tickets for the [Claimant] to Country B in the end of football season and med of football season as per Calendar of the Football Association of Country D each year of the contract of the player’.

3. By correspondence dated 9 February 2017, the Claimant put the Respondent in default of payment of USD 48,400, setting a 10 days’ time limit in order to remedy the default.

4. On 7 February 2017, and completed on 13 March 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 48,400, corresponding to:

- USD 43,000 as outstanding part of the total amount of USD 60,000 the player was entitled to, existing of the payment of USD 40,000 ‘cash in City E – Country D’ and the payment of USD 20,000 ‘on May 2016’;

- USD 4,000 as outstanding salary for the month of October 2016;

- USD 1,400 as ‘one flying ticket City E to Country B’.

5. The Respondent submitted its response to the claim only after the deadline it was given by the FIFA Administration had elapsed.

II. Considerations 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 7 February 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 7 February 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 26 November 2015 until 30 October 2016, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the following amounts:

- USD 40,000 ‘cash in City E – Country D’;

- USD 20,000 ‘on May 2016’;

- USD 4,000 as ‘monthly salary payable in end of each month during the period covered by this contract’.

Moreover, according to article 5 of the contract, the Claimant was entitled to the following: ‘The [Respondent] agreed to provide 2 tickets for the [Claimant] to Country B in the end of football season and med of football season as per Calendar of the Football Association of Country D each year of the contract of the player’.

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 USD 48,400, corresponding to:

(a) USD 43,000 as outstanding part of the total amount of USD 60,000 he was entitled to, consisting of a payment of USD 40,000 ‘cash in City E – Country D’ and a payment of USD 20,000 due ‘on May 2016’;

(b) USD 4,000 as outstanding salary for the month of October 2016 and;

(c) USD 1,400 as ‘one flying ticket City E to Country B’.

7. In this context, the DRC judge took particular note of the fact that, on 9 February 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 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, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 3 April 2017, only submitting its reply on 9 April 2017. As a result, bearing in mind the Chamber’s jurisprudence in this regard and 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 the documents on file that were provided prior to the deadline set by FIFA, in casu, the statements and documents presented by the Claimant.

10. Having said this, the DRC judge acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant a lump sum in the total amount of USD 60,000, as well as a monthly salary of USD 4,000. In addition, the Respondent was obliged to reimburse to the Claimant the costs of a flight ticket from City E to Country B.

11. Furthermore, taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had not fully substantiated his claim pertaining to overdue payables with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no supporting documentation on file, relating to the Claimant’s claim pertaining to the amount of USD 1,400 as costs for one flight ticket from City E to Country B. Consequently, the DRC judge decided to reject this part of the Claimant’s claim relating to the reimbursement of the costs of the alleged flight ticket from City E to Country B.

12. On account of the aforementioned considerations and the documentary evidence provided by the Claimant, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 47,000, corresponding to (a) USD 43,000 as outstanding part of the total amount of USD 60,000 the player was entitled to and (b) USD 4,000 as outstanding salary for the month of October 2016.

13. 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.

14. 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 USD 47,000.

15. Moreover, the DRC judge decided that any further request filed by the Claimant is rejected.

16. In continuation, taking into account the considerations under numbers II./13. and 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.

17. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, and bearing in mind that the Respondent did not reply to the claim of the Claimant within the established 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. Furthermore, taking into consideration the amount due of USD 47,000, the DRC judge regarded a fine amounting to CHF 5,000 as appropriate and hence decided to impose said fine on the Respondent.

18. 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. Decision 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, within 30 days as from the date of notification of this decision, overdue payables in the amount of USD 47,000.

3. In the event that the amount 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 of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further request filed by the Claimant is rejected.

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 judge of every payment received.

6. The Respondent is ordered to pay a fine in the amount of CHF 5,000. The fine is to be paid within 30 days 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 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 / www.tas-cas.org

For the DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives