F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 15 December 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 15 December 2017

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 10 June 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) allegedly signed an employment contract valid as from 1 July 2016 until 30 December 2016.

2. According to clause 2 of the employment contract, the Claimant would be entitled to a monthly remuneration of USD 3,500.

3. On an unknown date, the Respondent issued a duly signed and stamped letter with the following contents (hereinafter: the debt acknowledgement):

“[The Respondent] agrees that the [Claimant] have a pending two months' salary (sum of 7.500 USD) to [the Claimant] (…)

And also the club agrees to finish all the pending payments before 01/01/2017 (…)”

4. By correspondence dated 29 May 2017, the Claimant put the Respondent in default of payment of the total amount of USD 7,500, setting a 15 days’ time limit in order to remedy the default.

5. On 4 October 2017, subsequently completed on 8 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 USD 7,500, corresponding to the amount mentioned in the letter issued by the Respondent (cf. point I./3. above) plus 5% interest p.a. as from 1 January 2017.

6. In addition, the Claimant requested the payment of the legal costs for the amount of USD 500 and the imposition of sanctions against the Respondent.

7. After expiry of the time limit set by FIFA, the Claimant submitted an unsolicited correspondence.

8. In this regard, the Claimant explicitly rejected the Respondent’s apparent offer to settle its outstanding liabilities, and requested to continue with the procedure before FIFA amending his claim to the amount of USD 8,000.

9. The Respondent provided its comments to the claim after the expiration of the deadline granted by FIFA to respond.

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 4 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 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 4 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. In this respect, the DRC judge wished to highlight that the unsolicited correspondence received from the Claimant after expiry of the time limit (cf. points I./7. and I./8. above) cannot be taken into account in accordance with art. 9 par. 3 of the Procedural Rules.

6. Having said this, the DRC judge acknowledged that the parties allegedly signed an employment contract valid as from 1 July 2016 until 30 December 2016 and that, according to clause 2 of said contract, the Claimant would be entitled to a monthly remuneration of USD 3,500.

7. Moreover, the DRC observed that the Respondent issued a letter, duly stamped and signed, with the following contents:

“[The Respondent] agrees that the [Claimant] have a pending two months' salary (sum of 7.500 USD) to [the Claimant] (…)

And also the club agrees to finish all the pending payments before 01/01/2017 (…)”

8. 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 USD 7,500 corresponding to outstanding salaries stipulated in the debt acknowledgement issued by the Respondent.

9. In this context, the DRC judge took particular note of the fact that, on 29 May 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 15 days’ time limit 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 observed that the Respondent had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA. As a result, in application of art. 9 par. 3 of the Procedural Rules, the DRC judge decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, he shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.

12. 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 as to the aforementioned remuneration with sufficient documentary evidence.

13. 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 USD 7,500 corresponding to the payment which the Respondent committed to settle on 1 January 2017.

14. 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.

15. 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 amount of USD 7,500.

16. 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 the amount of USD 7,500 as from the day following the date on which the relevant payment fell due until the date of effective payment.

17. Subsequently, the DRC judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the Dispute Resolution Chamber in this regard.

18. In continuation, taking into account the consideration under number II./14. 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.

19. 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 did not reply to the claim of the Claimant within the time limit set by FIFA, the DRC judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) 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 fine amounting to CHF 1,000 as appropriate and hence decided to impose said fine on the Respondent.

20. 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 partially 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 USD 7,500, plus 5% interest p.a. over said amount as from 2 January 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. The Respondent is ordered to pay a fine in the amount of CHF 1,000. 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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives