F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 15 December 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 15 December 2017,

by Jon Newman (USA), 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 1 August 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 August 2016 until 30 May 2017.

2. According to the contract, the Claimant was entitled to a monthly remuneration in the amount of 13,125, payable at the end of each month.

3. Moreover, in accordance with the contract the Claimant was entitled, inter alia, to the following payments:

- 26,250, “after the first half of the season in 1/2/2017”;

- 26,250, “end the season. In 30/5/2017”.

4. By correspondence dated 4 August 2017, the Claimant put the Respondent in default of payment of 143,125 relating to salaries as from November 2016 until May 2017, the second instalment that fell due on 30 May 2017 as well as match bonuses, granting a deadline of 10 days in order to remedy the default.

5. On 22 August 2017, the Claimant lodged a claim against the Respondent in front of FIFA asking that the latter be ordered to pay to him the following overdue payables:

- 91,875, corresponding to salaries as from November 2016 until May 2017 (i.e. 13,125*7);

- 26,250, corresponding to the payment due on 30 May 2017 (cf. point 3 above).

6. In its reply, the Respondent considered that the amounts stated by the Claimant are not correct, and explained that only the amount of 105,000 remains outstanding, detailed as follows:

- 13,125*6 = 78,750, corresponding to the Claimant’s salary from December 2016 until May 2017;

- 26,250.

7. Furthermore, the Respondent stated that it paid the Claimant’s salary for November 2016 and submitted within the deadline granted by FIFA a receipt written in Language of Country D without any translation.

8. In his replica, the Claimant argued that the receipts provided by the Respondent are written in Language of Country D.

9. Moreover, the Claimant explained that the amount of 13,000 he received in November 2016, the receipt for which he signed, are related to a series of match bonuses but not to his salary.

10. In its final comments, the Respondent considered that, since the Claimant is a National of Country B, he should understand Language of Country D and that, consequently, he was aware of the contents of all the documents provided by it. The Respondent further pointed out that all salary receipts looked like the November 2016 one and that the Claimant never complained about the language and the receipts before, which demonstrates that his allegation that the amount was for “the rewards of the first round of the league” is incorrect.

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 22 August 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: the 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 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 22 August 2017, the 2016 edition of said regulations (hereinafter: the 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. In this respect, the DRC judge noted that, on 1 August 2016, the Claimant and the Respondent signed an employment contract, valid as from the date of signature until 30 May 2017 and that, according to said contract, the Claimant was entitled to a monthly remuneration in the amount of 13,125, payable at the end of each month.

6. Moreover, the DRC judge noted that, in accordance with the contract, the Claimant was entitled, inter alia, to the following payments:

- 26,250, “after the first half of the season in 1/2/2017”;

- 26,250, “end the season. In 30/5/2017”.

7. In continuation, the DRC judge duly noted 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 118,125, which he calculated on the basis of the Claimant’s request to receive the amounts of 91,875, corresponding to his salaries as from November 2016 until May 2017 (i.e. 13,125*7) and 26,250, corresponding to the payment due on 30 May 2017 (cf. point I. 3 above).

8. In this context, the DRC judge took particular note of the fact that, on 4 August 2017, the Claimant put the Respondent in default of payment of the total amount of 143,125 setting a 10 days’ time limit in order to remedy the default.

9. 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).

10. Subsequently, the DRC judge took into account the Respondent’s reply to the claim. In this respect, the DRC judge first observed that the Respondent effectively acknowledged that the amount of 105,000 remained outstanding, as follows:

- 13,125*6 = 78,750, corresponding to the player’s salary from December 2016 until May 2017;

- 26,250.

11. In view of the contents of the reply of the Respondent, the DRC judge understood that, from this point, it can be established that the Claimant would be entitled to receive at least the amount of 105,000 as overdue payables, since this was acknowledged by the Respondent and was supported by the contract concluded between the parties.

12. Notwithstanding the above, the DRC judge observed that there is still a disparity between the total amount requested by the Claimant (i.e. 118,125) and the amount that the Respondent acknowledged that was still outstanding (i.e. 105,000).

13. Therefore, the DRC judge considered at this stage that it is relevant for the assessment of the matter at hand to examine all the documentation provided by the Respondent in support of its arguments.

14. In relation to the documentation provided by Respondent, the DRC judge recalled the basic principle of the burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Similarly, the DRC judge referred to art. 9 par. 1 lit. e) of the Procedural Rules which stipulates that all documents of relevance to the dispute shall be submitted in the original version as well as translated into one of the official FIFA languages.

15. In this context, the DRC judge noted that, although having been informed, in accordance with art. 9 par. 1 lit. e of the Procedural Rules, that all documents of relevance to the dispute must be submitted, if need be, with a translation into one of the four official FIFA languages (English, Spanish, French and German), the Respondent did not provide within the established deadline a translated version of the documents it enclosed to its submission in Language of Country D only. In view of the foregoing and taking into consideration art. 9 of the Procedural Rules, the DRC judge decided that it could not take into account the relevant documents which were not translated into an official FIFA language.

16. In addition, the DRC judge noted that the Respondent submitted additional documentary evidence on 9 December 2017, i.e. after the closure of the investigation-phase by FIFA on 5 December 2017. As a result, and bearing in mind the constant jurisprudence of the DRC in this regard and in application of art. 9 par. 4 of the Procedural Rules, he decided not to take into account said documents and established that, in accordance with the aforementioned provision, he shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant within the established deadlines.

17. Consequently, the DRC judge considered that the Respondent did not present sufficient documentary evidence which could corroborate that it paid the entire amount that was requested by the Claimant.

18. On the other hand, the DRC judge took into account the documentation presented by the Claimant in support of his petition and concluded that the Claimant had substantiated his claim pertaining to overdue payables as to the aforementioned remuneration with sufficient documentary evidence.

11. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s aforementioned remuneration in the total amount of 118,125 corresponding to his salaries as from November 2016 until May 2017 and the payment due on 30 May 2017.

12. 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.

13. 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 118,125.

14. In continuation, taking into account the previous considerations, 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.

15. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent replied to the claim of the Claimant and that the Respondent cannot be held as a repeat offender, the DRC judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

16. 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 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 118,125.

3. In the event that the amount plus interest 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 from the expiry of the aforementioned deadline and 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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives