F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 4 July 2017

Decision of the Dispute Resolution Chamber

passed by way of circulars on 4 July 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. In 2015, 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 of 1 July 2015 until 30 June 2017 entitling the Claimant to the amount of USD 650,000 for the full contractual duration.

2. On 30 December 2015, the Claimant and the Respondent signed an agreement by means of which they terminated the contract (hereinafter: the termination agreement).

3. In accordance with the termination agreement, the Respondent undertook to pay to the Claimant the amount of USD 100,000 “cash” on 1 March 2016 either by cheque or by bank transfer.

4. By correspondence dated 11 November 2016, delivered by DHL on 18 December 2016, the Claimant put the Respondent in default of payment of USD 100,000 on the basis of the termination agreement, setting a 10 days’ time limit in order to remedy the default.

5. On 18 April 2017, subsequently completed on 11 May 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 100,000 due on 1 March 2016 in accordance with the termination agreement.

6. In spite of having been invited to do so, the Respondent has not replied to the claim.

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 18 April 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 an 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 18 April 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 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 following the conclusion of an employment contract in 2015, the Claimant and the Respondent signed a termination agreement on 30 December 2015, in accordance with which the Respondent undertook to pay to the Claimant the amount of USD 100,000 “cash” on 1 March 2016 either by cheque or by bank transfer.

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 100,000 in accordance with the termination agreement.

7. In this context, the Chamber took particular note of the fact that, by correspondence dated 11 November 2016, delivered by DHL on 18 December 2016, the Claimant put the Respondent in default of payment of the amount of USD 100,000 that fell due on 1 March 2016, setting a 10 days’ time limit 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 DRC took into account that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Chamber considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

11. Having said this, the DRC acknowledged that, in accordance with the termination agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of USD 100,000 on 1 March 2016.

12. Furthermore, the DRC noted that, along with his claim, the Claimant had presented a copy of 3 cheques issued by the Respondent on 29 September 2015 totalling 42,320 in the currency of Country D albeit no reference was made to these by the Claimant in his statement of claim. Nonetheless, the DRC took into account that these cheques were issued on 29 September 2015, whereas the termination agreement was signed on 30 December 2015 and does not include any reference to the issuance of said cheques.

13. Therefore, taking into account the documentation presented by the Claimant in support of his petition, the Chamber concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

14. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the amount of USD 100,000 due on 1 March 2016 in accordance with the termination agreement.

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

16. 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 100,000.

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

18. The Chamber established that in virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent. Therefore, and bearing in mind that the Respondent did not reply to the claim of the Claimant, the DRC 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 USD 100,000, the Chamber regarded a fine amounting to CHF 15,000 as appropriate and hence decided to impose said fine on the Respondent.

19. 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 overdue payables in the amount of USD 100,000 within 30 days as from the date of notification of this decision.

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 of every payment received.

5. The Respondent is ordered to pay a fine in the amount of CHF 15,000. 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. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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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