F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 8 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 March 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stefano Sartori (Italy), member

Pavel Pivovarov (Russia), member

Muzammil bin Mohamed (Singapore), 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. On 1 February 2013, 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 from the date of the signature until 31 December 2016.

2. Art. 16 of the contract established that “Any controversy or claim arising out of or relating to this Agreement, or the breach hereof, shall be amicably settled. Otherwise, the parties shall address to the Football Association E [Football Association of Country D] juridical bodies, in 7 days from the failure to comply with or the inappropriate fulfillment of the contractual obligations, the advanced reference to the court, summons or grace period not being necessary”.

3. On 14 June 2016, the Claimant and the Respondent signed a termination agreement as well as its annexe (hereinafter: the termination agreement and the annexe, respectively). In this regard, according to the copy on file, Vice-President F signed both, the termination agreement and the annexe on behalf of the Respondent in his capacity as vice-president of it.

4. The termination agreement established the following:

a. The “cancellation of the contract”;

b. That the Respondent “agree to respect the terms and conditions stated in the confidential anexe”; and

c. “From the moment the anexe terms and conditions are met [the Respondent] has not further to the obligations towards [the Claimant]”.

5. According to the annexe, the Respondent undertook the obligation to pay to the Claimant the amount of USD 27,000 by 30 June 2016, sum that corresponds to “all outstanding salaries, bonuses and any other compensation”. Moreover, the annexe explicitly specified that once the payment is made, the parties have no further obligations towards each other.

6. By correspondence dated 30 August 2016, the Claimant put the Respondent in default of payment of USD 27,000 setting a 10 days’ time limit in order to remedy the default.

7. Neither the termination agreement nor the annex have a jurisdiction clause in case of a dispute in connection with said documents.

8. On 12 September 2016, the Claimant lodged a claim in front of FIFA requesting the amount of USD 27,000, plus 5% p.a. as from 30 June 2016, corresponding to the amount established in the annexe, as he held the amount remained unpaid. Facts related to the competence of the Dispute Resolution Chamber:

9. On its reply, the Respondent challenged the competence of FIFA to deal with the present matter for the following reasons:

a. According to the Respondent, the dispute has a national dimension, even though the Claimant has a different nationality, since he was transferred to another club in Country D and therefore, remained registered with the Football Association E;

b. The parties expressly agreed in art. 16 of the contract (cf. point 2. above), to submit any disputes to the “national judicial bodies of the Football Association E”;

c. The national judicial bodies of the Football Association E comply with the requirements established by FIFA, arguing that the Football Association E meets the procedural requirements in accordance with the FIFA Regulations, making reference to the applicable art. 57 of the Football Association E Statutes.

10. On his replica, the Claimant insisted on FIFA’s competence and stated that:

a. The dispute between the parties has an international dimension since he holds a different nationality from the country on the territory of which the association at which he was registered with the Respondent;

b. Art. 16 of the contract is ambiguous and non-exclusive;

c. The termination agreement and the annexe do not contain an arbitration clause;

d. The national judicial bodies of the Football Association E do not comply with the requirements established in the FIFA Regulations.

Facts related to the substance of the case:

11. The Respondent rejected the claim as, according to it, the annexe must be considered null, arguing that “the annexe is abusive, illegal and it was issued to the player by a non-authorized person who had no competence and empowerment to sign a document like this”. In this respect, it held that the annexe was signed by Employee G, whose contract was terminated by the club on 28 February 2016.

12. Moreover, the Respondent stated that the amount requested by the player is illogical, since according to it, “usually in the case of contract termination between a player and a club, the player or new club should compensate the prejudice”.

13. As to the substance, the Claimant sustained that Vice-President F, and not Employee G signed the contract, the termination agreement and the annexe on behalf of the Respondent. Furthermore, the Claimant sustained that the argument of the Respondent in respect to consider the annexe as null and as abusive has to be rejected, since according to him, the Respondent has not substantiated its allegation.

14. Finally, in spite of having been invited to do so, the club did not submit its final comments after having been granted a deadline extension upon its request to do so.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 12 September 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the 2015, 2017 and 2018 editions 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 general, in accordance with art. 24 par. 1 in combination with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018, hereinafter: the Regulations) the Dispute Resolution Chamber is competent to deal with employment-related disputes with an international dimension between a player and a club.

3. The Chamber, however, acknowledged that the Respondent contested the competence of FIFA’s deciding bodies on the basis that there is no international dimension to the dispute, despite the fact that the Claimant has a different nationality, since the Claimant was transferred to another club in Country D and therefore, remained registered with the Football Association E.

4. In this regard, the Chamber noted that the Claimant insisted on the competence of the FIFA DRC to adjudicate on the claim lodged by him against the Respondent. The Claimant added that the international dimension is undeniable on the basis that he hold a different nationality from the country on the territory of which the association at which he was registered with the Respondent is located.

5. With regard to the argument of the Respondent that the present matter was not one of an international dimension, the Chamber underlined that in accordance with the documentation on file and statements provided by both parties, the Claimant has Nationality of Country B, fact that remains uncontested by the Respondent. The transfer of the Claimant to a club in Country D and the fact that he remained registered at the Football Association E does not change the conclusion of the Chamber. Thus, the Chamber concluded that the present dispute had an international dimension and the DRC is in principle competent to deal with it in accordance with art. 22 lit. b) of the Regulations.

6. Moreover, the Chamber noted that the Respondent also contested the competence of FIFA’s DRC on the basis that the national judicial bodies of the Football Association E are competent to deal with the present matter according to art. 16 of the contract since it established, to submit any disputes arisen of the contract to the “national judicial bodies of the Football Association E”.

7. In this respect, the Chamber took into consideration that the Claimant rejected such position and insisted on FIFA’s jurisdiction to deal with the present matter, as the matter at hand pertains on the execution of the termination agreement and its annexe.

8. In this context, the members of the Chamber turned to the contents of the termination agreement and the annexe, which are the basis of the present dispute between the Claimant and the Respondent. In this respect, the Chamber noted that neither the termination agreement nor the annexe, which are the result of a foregoing employment contract, include any exclusive jurisdiction clause or any reference to a national arbitration body in case of a dispute arisen between the parties.

9. Hence, the termination agreement and the annexe clearly do not refer to a national dispute resolution chamber or any similar arbitration body in the sense of art. 22 lit. b) of the aforementioned Regulations. Therefore, the members of the Chamber deemed that there is no existence of an exclusive jurisdiction clause in the termination agreement and the annexe which would preclude the Chamber from adjudicating on the present dispute.

10. Having established that the first criterion for the recognition of the competence of a national decision-making body is not fulfilled in the present matter, the Chamber deemed unnecessary to examine any further points which would need to be assessed before concluding to the competence of a national deciding body.

11. In view of the above, the Chamber established that the Respondent’s objections to the competence of FIFA to deal with the present matter had to be rejected and that the DRC is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to consider the present matter as to the substance.

12. Furthermore, the DRC 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 12 September 2016, the 2016 edition of the Regulations is applicable to the matter at hand as to the substance.

13. The competence of the DRC and the applicable regulations having been established, the DRC 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.

14. Having said this, the DRC acknowledged that the Claimant and the Respondent signed an employment contract valid as from 1 February 2013 until 31 December 2016.

15. Furthermore, the Chamber acknowledged that on 14 June 2016, the Claimant and the Respondent signed a termination agreement as well as its annexe. In this respect, the termination agreement established the cancelation of the contract and the annexe established that the Respondent undertook the obligation to pay the Claimant the amount of USD 27,000 by 30 June 2016, which corresponds to outstanding salaries, bonuses, and any other compensation.

16. The DRC noted that on 12 September 2016, 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 27,000, corresponding to amount established in the annexe. In the claim, the Claimant asserted not having received the payment established therein.

17. In this context, the DRC took particular note of the fact that, on 30 August 2016, 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.

18. 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).

19. Subsequently, the DRC took into account that the Respondent, for its part, held that the claim should be rejected. In this regard, it was duly observed by the Chamber that the Respondent maintained that the annexe must be considered null, arguing that it was abusive, illegal and issued by Employee G, a non-authorized person whose contract was terminated on 28 February 2016.

20. In this regard, the Chamber took into account that no further proof was provided by the Respondent to consider the annexe null and abusive. Morever, it was observed by the DRC that the documents submitted by the Claimant, which are the basis of his claim, particularly the termination agreement and the annexe, were signed by Vice-President F and not the person which the club contested, Employee G.

21. Consequently, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reasons for non-payment of the payment claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

22. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 27,000 corresponding to the amount established in the annexe.

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

24. 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 27,000.

25. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the relevant payment, as of the day following the day on which the relevant payment fell due, i.e. 1 July 2016 until the date of effective payment.

26. In continuation, taking into account the consideration under number II./23. 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.

27. The Chamber established that by virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent duly replied to the claim of the Claimant and in the absence of the circumstance of repeated offence, the DRC decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

28. In this connection, 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 admissible.

2. The claim of the Claimant is partially accepted.

3. 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 USD 27,000, plus interest at the rate of 5% p.a. as from 1 July 2016 until the date of effective payment.

4. 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.

5. 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.

6. 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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives