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 February 2018
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 15 February 2018,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Eirik Monsen (Norway), member
Stéphane Burchkalter (France), member
Philippe Diallo (France), member
Joseph Bell (Cameroon), 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 6 January 2016, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club E, signed an employment contract valid as from the date of signing until 31 May 2019.
2. On 25 August 2016, the Claimant, Club E, and the Club of Country D, Club C (hereinafter: the Respondent) signed a “temporary transfer contract” (hereinafter: the contract) pursuant to which the Claimant was loaned to the Respondent as from 25 August 2016 until 31 May 2017.
3. In accordance with the contract, the Respondent undertook to pay to the Claimant, inter alia, EUR 30,000 “as advance payment”, and EUR 180,000 in 10 equal monthly instalments of EUR 18,000 to be paid the 30th day of each month (28th in February) as from August 2016 until May 2017.
4. By correspondence dated 26 July 2017, the Claimant put the Respondent in default of payment of EUR 108,000, setting a time limit of 10 days in order to remedy the default.
5. On 30 August 2017, completed on 15 September 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 108,000, corresponding to 6 monthly salaries of EUR 18,000 each from December 2016 until May 2017.
6. The Claimant further asked to be awarded 5% interest p.a. as from the dates on which each of the payments fell due.
7. In reply to the claim, the Respondent argued that the payments indicated in the contract were gross and, thus, the total contractual obligation of EUR 210,000 claimed by the Claimant was EUR 189,000 net instead, applying Tax Legislation of Country D.
8. Furthermore, the Respondent explained that it had paid the Claimant the total amount of EUR 78,655 and 193,250, and submitted a number of documents showing payments apparently made towards the Claimant in relation to his salaries and bonuses.
9. Consequently, according to the Respondent, the claim had to be rejected since, after deducting the above mentioned amounts, the Respondent “owe[d] the [Claimant] in the net amount of EUR 54,898.57”.
10. In his replica, the Claimant firstly denied that his salary was gross, since the contract did not contain any provision in that sense. Furthermore, he acknowledged having received the payments listed by the Respondent but pointed out that some of them were related to bonuses and not salaries. More specifically, the Claimant explained that, out of the above-mentioned payments, only the following concerned his salary:
payment of EUR 78,655;
payment of 130,000, dated 21 October 2016;
payment of 9,750, dated 2 May 2017.
11. Consequently, according to the Claimant, out of the total amount of EUR 210,000 due to him as salaries, the Respondent had paid only EUR 120,000, leaving EUR 90,000 outstanding. Therefore, the Claimant, on 22 November 2017, amended his claim, asking that the Respondent be ordered to pay to him overdue payables in the amount of EUR 90,000, plus interest as follows:
a. 5% p.a. on EUR 18,000 “on 30th January 2017”;
b. 5% p.a. on EUR 18,000 “as of 28th February 2017”;
c. 5% p.a. on EUR 18,000 “on March 30th 2017”;
d. 5% p.a. on EUR 18,000 “on April 30th 2017”;
e. 5% p.a. on EUR 18,000 “as of May 30th 2017”.
12. In spite of having been invited to do so, the Respondent did not present its final comments on the matter.
II. Considerations of the Dispute Resolution Chamber
1. First of all, the Dispute Resolution Chamber (hereinafter: 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 30 August 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
2. Subsequently, the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018), it 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 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 2018) and considering that the present claim was lodged on 30 August 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 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 emphasized 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 the Claimant and the Club of Country D, Club E, signed an employment contract valid as from 6 January 2016 until 31 May 2019.
6. Furthermore, the members of the Chamber observed that, on 25 August 2016, the Claimant, Club E and the Respondent signed a contract, pursuant to which the Claimant was loaned to the Respondent as from 25 August 2016 until 31 May 2017.
7. In continuation, the Chamber noted that, in accordance with the contract, the Respondent undertook to pay to the Claimant, inter alia, EUR 30,000 “as advance payment”, and EUR 180,000 in 10 equal monthly instalments of EUR 18,000 to be paid the 30th day of each month (28th in February) as from August 2016 until May 2017.
8. 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 EUR 108,000, corresponding to 6 monthly salaries of EUR 18,000 each as from December 2016 until May 2017.
9. In this context, the DRC took particular note of the fact that, on 26 July 2017, the Claimant put the Respondent in default of payment of the amount of EUR 108,000, setting a 10 days’ time limit in order to remedy the default.
10. 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).
11. Subsequently, the DRC took into account that the Respondent, for its part, argued that the salaries due to the Claimant were gross and, as such, taxes were to be deducted. Moreover, the Respondent claimed having remitted to the Claimant the amount of EUR 78,655 and 193,250. The members of the Chamber further noted that such sums concerned both salary and bonus entitlements.
12. In continuation, the DRC noted that the Claimant, in his replica, denied that his salary was gross and acknowledged having received the payments listed by the Respondent. However, the DRC took note that the Claimant pointed out that, given that some of those payments were related to bonuses rather than salaries, out of the total amount of EUR 210,000 due to him as salaries, the Respondent had paid only EUR 120,000, leaving EUR 90,000 outstanding.
13. In relation to the above, the members of the Chamber observed that the Claimant, on 22 November 2017, amended his claim, asking that the Respondent be ordered to pay to him overdue payables in the amount of EUR 90,000, plus interest as follows:
a. 5% p.a. on EUR 18,000 “on 30th January 2017”;
b. 5% p.a. on EUR 18,000 “as of 28th February 2017”;
c. 5% p.a. on EUR 18,000 “on March 30th 2017”;
d. 5% p.a. on EUR 18,000 “on April 30th 2017”;
e. 5% p.a. on EUR 18,000 “as of May 30th 2017”.
14. Furthermore, the DRC highlighted that the Respondent did not contest the Claimant’s replica that the payments it had made, some of which in Currency of Country D, total EUR 120,000 in relation to his salary.
15. Having said this, the DRC acknowledged that, in accordance with the contract, the Respondent was obliged to pay to the Claimant, inter alia, the amount of EUR 180,000 in 10 equal monthly instalments of EUR 18,000 to be paid the 30th day of each month (28th in February) from August 2016 until May 2017, plus EUR 30,000 as “advance payment”.
16. Furthermore, the members of the Chamber observed that the contract does not stipulate whether the Claimant’s financial entitlements were net or gross. In this respect, the DRC deemed important to recall art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and deemed that the Respondent had not presented any documentation which would demonstrate that such amounts were to be considered gross or which amount or percentage was to be deducted from the monthly payments.
17. On account of the aforementioned considerations, the documentary evidence provided by the parties and the fact that the Respondent did not reply to the Claimant’s replica, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 90,000.
18. In addition, the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.
19. 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 EUR 90,000.
20. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant interest on the above-mentioned amount as follows:
- 5% p.a. on the amount of EUR 18,000 as from 31 January 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 1 March 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 31 March 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 1 May 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 31 May 2017 until the date of effective payment.
21. In continuation, taking into account the consideration under number II./18. 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.
22. The DRC 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.
23. In this respect, the Chamber 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 partially accepted.
2. The Respondent, Club C, has to pay overdue payables in the amount of EUR 90,000 to the Claimant within 30 days as from the date of notification of this decision.
3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, interest of 5% p.a. as follows:
- 5% p.a. on the amount of EUR 18,000 as from 31 January 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 1 March 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 31 March 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 1 May 2017 until the date of effective payment;
- 5% p.a. on the amount of EUR 18,000 as from 31 May 2017 until the date of effective payment.
4. In the event that the amount plus interest due to the Claimant are 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. Any further claim of the Claimant is rejected.
6. 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.
7. A warning is imposed on the Respondent.
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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