F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 6 February 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 6 February 2018,

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 17 January 2017, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) signed a document entitled “MODIFICACION OF CONTRACT OF EMPLOYMENT” (hereinafter: the amended contract), which refers to the employment contract (hereinafter: the contract) signed between the parties valid as from 29 August 2016 until 29 May 2017.

2. In accordance with the amended contract, the financial terms of the contract were modified and the Respondent undertook to pay to the Claimant the total amount of EUR 20,000 for the period from 5 January 2017 until 29 May 2017, amount which was payable in 5 instalments of EUR 4,000 each, due on 31 January 2017, 28 February 2017, 31 March 2017, 30 April 2017 and 15 May 2017, respectively.

3. Furthermore, in accordance with the amended contract, the Respondent undertook to pay the Claimant a bonus of EUR 5,000 on 29 May 2017, in case the Respondent “achieves to stay by any mean in the First League of the Football Federation of Country D after the end of the football season 2016-2017”.

4. By correspondence dated 31 July 2017, the Claimant put the Respondent in default of payment of EUR 17,000 setting a time limit expiring on 10 August 2017 in order to remedy the default.

5. On 26 July 2017, and completed on 17 August 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 EUR 17,000, corresponding to 3 instalments of EUR 4,000 each, due on 31 March 2017, 30 April 2017 and 15 May 2017, in accordance with the amended contract, as well as the bonus payment of EUR 5,000 also established in the amended contract, since according to the Claimant, the Respondent “has remained in the First League of the Football Federation of Country D after the end of the football season 2016-2017“.

6. The Claimant further requested to be awarded interest as from “the date on which the payments should be made”.

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

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 26 July 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 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 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 26 July 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 the Claimant and the Respondent on 17 January 2017, the parties had signed an employment contract valid as from 29 August 2016 until 29 May 2017, contract which was later amended by signing the amended contract on 17 January 2017.

6. Furthermore, the DRC judge noted that the amended contract modified the financial terms of the employment contract and stipulated that the Claimant was entitled to receive from the Respondent, for the period from 5 January 2017 until 29 May 2017, inter alia, the amount of EUR 20,000. In this respect, the DRC judge observed that said amount was payable in 5 instalments of EUR 4,000 each, due on 31 January 2017, 28 February 2017, 31 March 2017, 30 April 2017 and 15 May 2017, respectively.

7. Moreover, the DRC judge recalled that the amended contract established that the Respondent undertook to pay the Claimant a bonus of EUR 5,000 on 29 May 2017. In this regard, the amended contract stipulated that said bonus was payable in case the Respondent “achieves to stay by any mean in the First League of the Football Federation of Country D after the end of the football season 2016-2017”.

8. Along this line, the DRC judge noted that, on 26 July 2017, the Claimant lodged a claim against the Respondent in front of FIFA, which was subsequently completed on 17 August 2017, maintaining that the Respondent has overdue payables towards him in the total amount of EUR 17,000. In this regard, the DRC judge duly observed that the Claimant held that 3 instalments of EUR 4,000 each, due on 31 March 2017, 30 April 2017 and 15 May 2017 in accordance with the amended contract, remain unpaid. Moreover, the Claimant asserted that the condition for the bonus payment of EUR 5,000 was fulfilled, and that said amount has not been paid by the Respondent. In this respect, the DRC judge noted that the Claimant enclosed documentation to his claim in order to support his argumentation regarding the fulfilment of the bonus payment condition.

9. In this context, the DRC judge took particular note of the fact that, on 31 July 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit expiring on 10 August 2017 in order to remedy the default.

10. 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 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 DRC judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

12. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.

13. Having said this, the DRC judge acknowledged that, in accordance with the amended contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 20,000 in 5 instalments and EUR 5,000 as a bonus payment.

14. Taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence, particularly, since there is evidence on file demonstrating that the Claimant is entitled to receive the bonus payment from the Respondent.

15. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 17,000 corresponding to 3 instalments of EUR 4,000 each, as well as the bonus payment of EUR 5,000.

16. 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.

17. 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 EUR 17,000.

18. 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 each of the relevant payments as of the day following the day on which the relevant payments fell due.

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

20. 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 did not reply to the claim of the Claimant, 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 EUR 17,000, the DRC judge regarded a fine amounting to CHF 2,000 as appropriate and hence decided to impose said fine on the Respondent.

21. 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.

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 EUR 17,000 plus interest at the rate of 5% p.a. until the date of effective payment as follows:

a. 5% p.a. on the amount of EUR 4,000 as from 1 April 2017;

b. 5% p.a. on the amount of EUR 4,000 as from 1 May 2017;

c. 5% p.a. on the amount of EUR 4,000 as from 16 May 2017;

d. 5% p.a. on the amount of EUR 5,000 as from 30 May 2017.

3. In the event that the amount due to the Claimant, plus interest, 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. The Respondent is ordered to pay a fine in the amount of CHF 2,000. 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

*****

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:

Marco Villiger

Chief Legal & Integrity Officer

Encl: CAS directives