F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 23 March 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 23 March 2017,

in the following composition:

Thomas Grimm (Switzerland), Deputy Chairman

Theo van Seggelen (Netherlands), member

Carlos González Puche (Colombia), member

Alejandro Marón (Argentina), 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 22 July 2015, the player from country B, Player A (hereinafter: Claimant), and the club from country D, Club C (hereinafter: Respondent) signed an employment contract (hereinafter: contract) valid as of the date of signature until the end of the 2015-16 season.

2. In accordance with the contract, the Respondent undertook to pay to the Claimant the amount of EUR 420,000 as follows: EUR 110,000 on the signing date of the contract, EUR 100,000 on 30 September 2015, EUR 100,000 on 31 January 2016 and EUR 110,000 on 30 April 2016, as well as EUR 10,000 for covering the expenses of the Claimant.

3. By correspondence dated 22 August 2016, the Claimant put the Respondent in default of payment of the amount of EUR 100,000, “from the salary with the due date of 30th April 2016”, plus EUR 1,583 as interest, setting a 10 days’ time limit in order to remedy the default.

4. On 25 October 2016, subsequently completed on 1 November 2016, 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 110,000 corresponding to the instalment that fell due on 30 April 2016.

5. The Claimant further asks to be awarded interest of 5% p.a. on said amount as of 30 April 2016 and that the Respondent shall bear the procedural costs.

6. In reply to the claim, the Respondent held that it did not receive any default notice and that it paid the total amount of EUR 330,000 to the Claimant. The Respondent further claimed that, consequently, only the amount of EUR 90,000 remained outstanding. The Claimant further raised that the parties allegedly signed a waiver and that, therefore, no remuneration remained outstanding.

7. In his replica, the Claimant stressed that he did send a default notice to the Respondent on 22 August 2016 referring to the relevant fax transmission report, a copy of which he had submitted along with his statement of claim. The Claimant further acknowledged having received the total amount of EUR 325,000 as salaries as well as EUR 5,000 as a “house rental fee”.

8. In addition, the Claimant amended his claim, requesting that the Respondent be ordered to pay overdue payables in the total amount of EUR 100,000, i.e. the amount of EUR 95,000 corresponding to part of the last instalment that fell due on 30 April 2016 as well as EUR 5,000 corresponding to part of the expenses. Moreover, the Claimant asked to be awarded interest of 5% p.a. on the amount of EUR 95,000 as of 30 April 2016 and on the amount of EUR 5,000 as of 23 December 2016, and that the Respondent shall bear the procedural costs.

9. In its duplica, the Respondent maintained its previous argumentation, claiming that the total amount due to the Claimant on the basis of the contract was EUR 420,000 and denying having received a default notice. The Respondent further reiterated that the Claimant’s claim should be rejected. Alternatively, the Respondent held that only EUR 90,000 would remain outstanding, since it paid the total amount of EUR 330,000, plus interest as of the date of the claim in front of FIFA.

II. Considerations of the Dispute Resolution Chamber

1. First, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or 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 25 October 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 conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016) the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from country B and a club from country D.

3. Furthermore, the Chamber analysed which regulations should be applicable as to the substance of the matter. In this respect, it 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 25 October 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Having said this, the DRC acknowledged that the Claimant and the Respondent signed an employment contract valid from 22 July 2015 until the end of the 2015-16 season, in accordance with which the Claimant was entitled to receive the amount of EUR 420,000 as follows: EUR 110,000 on the signing date of the contract, EUR 100,000 on 30 September 2015, EUR 100,000 on 31 January 2016 and EUR 110,000 on 30 April 2016, as well as EUR 10,000 for covering the expenses of the Claimant.

6. In continuation, the members of the Chamber noted that, by correspondence dated 22 August 2016, the Claimant put the Respondent in default of payment of the amount of EUR 100,000, “from the salary with the due date of 30th April 2016”, plus EUR 1,583 as interest setting a 10 days’ time limit in order to remedy the default.

7. Subsequently, the Chamber took into account that the Respondent held that it did not receive any default notice from the Claimant.

8. In this regard, after careful study of the documentation on file, the members of the Chamber took into account that the Claimant submitted a fax transmission report demonstrating that the aforementioned default notice was duly sent to the fax number of the Respondent on 22 August 2016.

9. Consequently, the DRC decided to reject the argument raised by the Respondent and considered 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. In continuation, the DRC took note 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 EUR 110,000 corresponding to the instalment that fell due on 30 April 2016.

11. Subsequently, the Chamber took note that the Respondent, for its part, alleged that it paid to the Claimant the total amount of EUR 330,000 and that, in support of its position, the Respondent submitted five receipts, allegedly establishing payment of a total amount of EUR 325,000, as well as a bank document indicating a payment of EUR 5,000, all drafted in the language of country D and without translation. The Respondent further claimed that the total amount due to the Claimant on the basis of the contract was EUR 420,000 and that, consequently, only EUR 90,000 would remain outstanding. The Respondent also alleged that the parties signed a waiver and that consequently, no remuneration remained outstanding. In this respect, the DRC took into account that the Respondent had not submitted any documentation corroborating such allegation.

12. In continuation, the members of the Chamber took into account that the Claimant acknowledged having received the amount of EUR 325,000 as salaries as well as EUR 5,000 as a “house rental fee”, i.e. the total amount of EUR 330,000, and that consequently, the Claimant amended his claim, maintaining that the Respondent has overdue payables towards him in the amounts of EUR 95,000 corresponding to the remaining part of the last instalment due on 30 April 2016 and EUR 5,000 corresponding to the remaining part of the contractual expenses.

13. Subsequently, the Chamber reverted to the Respondent’s statement that the total amount due to the Claimant on the basis of the contract was EUR 420,000 and that, consequently, only EUR 90,000 would remain outstanding. In this regard, the DRC referred to the relevant contractual clauses, which explicitly state that the Claimant was entitled to receive the total amount of EUR 420,000 as salaries as well as EUR 10,000 to cover his expenses, i.e. EUR 430,000 in total. Consequently, the DRC decided that such argument of the Respondent could not be upheld.

14. In view of the aforementioned considerations, the DRC concluded that the Respondent had no valid reasons for the non-remittance 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.

15. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 100,000, corresponding to the remaining EUR 95,000 of the last instalment that fell due on 30 April 2016 and to the remainder of the contractual expenses, i.e. EUR 5,000.

16. In addition, the members of the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

17. 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 EUR 100,000.

18. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 95,000 as of the day following the day on which the relevant payment fell due, i.e. as of 1 May 2016, as well as interest of 5% p.a. on the amount of EUR 5,000 as of 23 December 2016.

19. Furthermore, as regards the Claimant’s request relating to procedural costs, the Dispute Resolution Chamber highlighted that according to art. 18 par. 2 of the Procedural Rules, DRC proceedings relating to employment-related disputes between a club and a player of an international dimension are free of charge. Consequently, the Chamber decided to reject the Claimant’s request relating to procedural costs.

20. In continuation, taking into account the consideration under number II./16 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.

21. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has the competence to impose sanctions on the Respondent. In this context, the Chamber highlighted that, on 24 November 2016, in three separate matters in front of it, the Respondent had been found by the DRC, for the fourth, fifth and sixth time to have delayed a due payment for more than 30 days without a prima facie contractual basis and without the Respondent having responded to the relevant claims. As a consequence, on 24 November 2016, the DRC imposed fines on the Respondent as well as a ban from registering any new players for one entire registration period, the execution of which ban is suspended during a probation period of one year following the notification of the relevant decision, i.e. as of 11 January 2017. If the Respondent commits another infringement during this one year probationary period, the suspension is automatically revoked and the registration ban executed.

22. Consequently, the Chamber established that in the present matter, the Respondent is found to have delayed a due payment for more than 30 days without a prima facie contractual basis for the seventh time.

23. In this regard, the DRC wished to highlight that, however, the facts giving rise to the present dispute occurred prior to the entry into force of the aforementioned probation period currently faced by the Respondent and, thus, have no effect on the probationary period.

24. In consideration of all the aforementioned circumstances, the DRC decided to impose a severe 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 100,000 as well as the aggravating circumstance of a repeated offence, the DRC regarded a fine amounting to CHF 75,000 as appropriate and hence decided to impose said fine on the Respondent.

III. Decision of the Dispute Resolution Chamber

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 EUR 100,000, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

a. 5% p.a. as of 1 May 2016 on the amount of EUR 95,000;

b. 5% p.a. as of 23 December 2016 on the amount of EUR 5,000.

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. 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 of every payment received.

6. The Respondent is ordered to pay a fine in the amount of CHF 75,000. 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. XXXX:

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

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives