F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 30 November 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 30 November 2017

by Mario Gallavotti (Italy), 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 2 July 2015, Club E (Country D), the Player of Country B, Player A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent), signed a loan contract, according to which the Claimant was loaned to the Respondent as from 1 July 2015 until 30 June 2016.

2. On 25 August 2015, the Claimant and the Respondent signed an “Agreement on payment of fees for improvement of sport” (hereinafter: agreement).

3. In accordance with the agreement, the Respondent undertook to pay to the Claimant “total amount of 7.000, in two equal instalments, i.e.: I instalment in the amount of 3.500, after signing of this Agreement (written by hand: 10/09 – 15/09) II instalment in the amount of 3.500 (written by hand: until 20/01/2016”.

4. By correspondence dated 21 August 2017, the Claimant put the Respondent in default of payment of 7,000, setting a 10 days’ time limit in order to remedy the default.

5. On 3 October 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 7,000 corresponding to the two instalments provided for in the agreement.

6. The Claimant further asked to be awarded interest of 5% p.a. as of the expiry of a time limit of 30 days from the notification of the decision.

7. The Respondent submitted its response to the claim after expiry of the deadline set by FIFA in order for the Respondent to present its reply.

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 3 October 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 3 October 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 Club E, the Claimant and the Respondent signed a loan agreement valid as from 1 July 2015 until 30 June 2016, and that, on 25 August 2015, the Claimant and the Respondent signed an agreement in accordance with which the former was entitled to receive from the latter the “total amount of 7.000, in two equal instalments, i.e.: I instalment in the amount of 3.500, after signing of this Agreement (written by hand: 10/09 – 15/09) II instalment in the amount of 3.500 (written by hand: until 20/01/2016”.

6. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent had overdue payables towards him in the total amount of 7,000, corresponding to the two instalments provided for in the agreement.

7. In this context, the DRC judge took particular note of the fact that, on 21 August 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.

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 replied to the claim of the Claimant outside the time limit set by FIFA. As a result, in line with art. 9 par. 3 of the Procedural Rules, the DRC judge decided that the reply of the Respondent shall not be taken into account and established that, in accordance with the aforementioned provision, he shall take a decision upon the basis of the documents already on file prior to expiry of said time limit, in casu, upon the statements and documents presented by the Claimant.

10. Having said this, the DRC judge acknowledged that, in accordance with the agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the “total amount of 7.000, in two equal instalments, i.e.: I instalment in the amount of 3.500, after signing of this Agreement (written by hand: 10/09 – 15/09) II instalment in the amount of 3.500 (written by hand: until 20/01/2016”.

11. The DRC judge further noted that, at the time the claim was lodged, i.e. 3 October 2017, more than two years had elapsed since the first instalment fell due, i.e. between 10 and 15 September 2015. Therefore, the DRC judge pointed out that, in line with art. 25 par. 5 of the Regulations, the claim of the Claimant pertaining to the first instalment in the amount of 3,500 is time-barred and, thus, not admissible. Hence, the DRC judge concluded that the Claimant’s claim is admissible only with regards to the second instalment of 3,500, which fell due on 20 January 2016.

12. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the amount of 3,500, corresponding to the second instalment provided for in the agreement.

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 3,500.

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

16. The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that the Respondent replied to the claim of the Claimant outside the time limit, 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 3,500, the DRC judge regarded a fine amounting to CHF 500 as appropriate and hence decided to impose said fine on the Respondent.

17. In this connection, 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 insofar as it is admissible.

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 3,500.

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. 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. The Respondent is ordered to pay a fine in the amount of CHF 500. 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

For the DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives