F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 3 May 2017

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 3 May 2017,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Theo van Seggelen (Netherlands), 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 18 January 2016, the player of Country B, Player A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) signed an employment contract (hereinafter: the contract) valid as from 1 January 2016 until 31 December 2016.

2. In accordance with the contract, the Respondent undertook to pay to the Claimant a monthly salary of USD 7,000. In addition, the Respondent committed to pay to the Claimant a sign-on fee of USD 80,000. The contract further specifies that the remuneration established therein has to be paid in national currency.

3. By correspondence dated 31 January 2017, the Claimant put the Respondent in default of payment of USD 109,000 setting a time limit expiring on 10 February 2017 in order to remedy the default.

4. On 23 January 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 109,000 corresponding to the salaries from June 2016 until December 2016 (USD 49,000) as well as the outstanding part of the sign-on fee (USD 60,000).

5. The Claimant further asks to be awarded interest of 5% p.a. on the amount of USD 109,000 as from 15 January 2017.

6. In reply to the claim, the Respondent acknowledged its debt, while emphasising that in accordance with the contract, the remuneration had to be paid in the currency of Country D and not in USD.

II. Considerations of the Dispute Resolution Chamber

1. First of all, 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 23 January 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 members of the Chamber referred to art. 3 par. 1 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), 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 of Country B and a club of 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 23 January 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 Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the DRC 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 1 January 2016 until 31 December 2016, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of USD 7,000 as well as a sign-on fee of USD 80,000.

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 109,000 corresponding to the salaries from June 2016 until December 2016 (USD 49,000) as well as the outstanding part of the sign-on fee (USD 60,000).

7. In this context, the Chamber took particular note of the fact that, on 31 January 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit expiring on 10 February 2017 in order to remedy the default.

8. Consequently, the DRC 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 Chamber took into account that the Respondent acknowledged its debt, while emphasising that in accordance with the contract, the remuneration had to be paid in the currency of Country D and not in USD.

10. In this regard, the DRC noted that albeit the contract provides that the remuneration has to be paid in the currency of Country D, the latter explicitly provides for an exact amount to be paid in USD and does not establish a specific exchange rate. Furthermore, the Chamber referred to art. 12 par. 3 of the Procedural Rules and emphasised that the Respondent failed to submit any evidence regarding the exchange rate applicable.

11. Consequently, the DRC decided to reject the argumentation put forward by the Respondent and to award the amounts claimed in USD.

12. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 109,000 corresponding to the salaries from June 2016 until December 2016 (USD 49,000) as well as the outstanding part of the sign-on fee (USD 60,000).

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

14. 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 109,000.

15. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of USD 109,000 as from 15 January 2017 until the date of effective payment.

16. In continuation, taking into account the consideration under number II./13. 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.

17. The 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 Chamber decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

18. In this respect, the DRC 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 as from the date of notification of this decision, overdue payables in the amount of USD 109,000, plus interest at the rate of 5% p.a. as from 15 January 2017 until the date of effective payment.

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 DRC judge 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