F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 18 April 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 18 April 2018,

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

1. Facts of the case

1. On 5 June 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) concluded an employment contract (hereinafter: the contract), valid as from 1 August 2016 until 31 May 2017.

2. According to clause 5 of the contract, the Claimant was entitled to a total remuneration of “81,60,000”, stipulated to be equivalent to USD “1,20,000”.

3. By correspondence dated 27 November 2017, the Claimant put the Respondent in default of payment of 3,489,500 granting 10 days in order to remedy the default.

4. On 19 December 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 3,489,500 corresponding to outstanding remuneration, plus 5% interest p.a. as from 31 May 2017.

5. Moreover, the Claimant explained that the Respondent acknowledged the aforementioned debt via a document signed by the Respondent’s Chief Operating Officer on 21 September 2017.

6. In its reply, the Respondent confirmed the existence of its debts towards the Claimant, but explained that during the year 2017, its financial condition was “affected”. Nevertheless, the Respondent expressed its will to pay the debt towards the Claimant for the amount of “34,89,500” once it will regain financial stability, a process that, according to the Respondent, “will take around 12 months”.

7. Consequently, the Respondent requested to be sentenced to pay the amount of “34,89,500” without interest within 12 months in view of its financial condition “in the interest of justice, equity and fair conscience”.

8. In his replica, the Claimant insisted to be paid the amount of 3,489,500 and explained that this amount corresponds to the amount of “34,89,500” as expressed by the Respondent, since the latter used the Short Scale of Country D.

9. In addition, the Claimant considered that he cannot be held liable for the Respondent’s alleged financial problems.

10. As final comments, the Respondent explained that its bank accounts were frozen by the local authorities and requested additional time to pay the amount of “34,89,500” to the Claimant.

II. Considerations of the DRC judge

1. First of all, the Dispute Resolution Chamber (DRC) judge (hereinafter also referred to as 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 19 December 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 2017 and 2018 editions 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 2018) 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 (editions 2016 and 2018), and considering that the present claim was lodged on 19 December 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, on 5 June 2016, the parties at stake signed an employment contract, valid as from 1 August 2016 until 31 May 2017 and that, according to clause 5 of the contract, the Claimant was entitled to a total remuneration of “81,60,000”, stipulated to be equivalent to USD “1,20,000”.

6. 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 3,489,500, corresponding to the employment contract as well as to the letter apparently issued by the Respondent, as stated above.

7. Moreover, the DRC judge noted that, according to the Claimant, the Respondent acknowledged the aforementioned debt via a document signed by the Respondent’s Chief Operating Officer on 21 September 2017.

8. In this context, the DRC judge took particular note of the fact that, on 27 November 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, 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).

11. Subsequently, the DRC judge observed that the Respondent had, for its part, acknowledged the existence of its debts towards the Claimant, but that it explained that, during the year 2017, its financial condition was “affected”. The DRC judge took note of the Respondent’s acknowledgement to pay the amount of “34,89,500” once it will regain financial stability, a process that, according to the Respondent, “will take around 12 months”.

12. In reference to the aforementioned argument, the DRC judge noted the Claimant’s allegation, according to which he cannot be held liable for the Respondent’s alleged financial problems.

13. In this respect, the DRC judge understood, in accordance with its longstanding jurisprudence as well as with the principle of pacta sunt servanda that the Respondent’s financial condition and the alleged consequences thereof could not be held against the Claimant, who had no influence whatsoever on these processes and bore no responsibility in this regard.

14. As a consequence, the DRC judge established that the Respondent should pay to the Claimant the outstanding amount of 3,489,500.

15. For the sake of clarity, the DRC judge took note of the Respondent’s allegation, according to which said amount would correspond to “34,89,500” .

16. In this respect, the DRC judge understood that the difference of 3,489,500 and “34,89,500” are only different ways to express the same amount (depending on whether the Numbering System of Country D is used) and that, consequently, the Respondent’s allegation had no relevance in relation to the due amount. Nevertheless, for the sake of clarity, the DRC judge wished to underline that the outstanding amount of 3,489,500 corresponds, in letters, to “three million, four hundred eighty-nine thousand and five hundred.”

17. 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.

18. 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 3,489,500.

19. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on said amount as from the relevant due date (i.e. 1 June 2017) until the date of effective payment.

20. 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.

21. 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, the DRC judge decided to impose a sanction on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations. On this basis and taking into consideration the circumstances of the current matter and the amount in dispute, the DRC judge regarded a warning as appropriate and hence decided to impose said warning on the Respondent.

22. 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 3,489,500, plus 5% interest p.a. over said amount as from 1 June 2017 until the date of effective payment.

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. 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