F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 17 May 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 May 2018,

in the following composition:

Geoff Thompson (England), Chairman

John Bramhall (England), member

Stijn Boeykens (Belgium), member

Philippe Diallo (France), member

Jérôme Perlemuter (France), 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 3 July 2014, 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 valid as from 4 July 2014 until 30 June 2017 (hereinafter: the contract).

2. On 5 June 2017, the Claimant and the Respondent signed an agreement (hereinafter: the settlement agreement) by means of which they settled a contractual dispute arisen between them (cf. case nr. XXX) and they terminated the contract with immediate effect.

3. In accordance with the settlement agreement, the Respondent undertook to pay the Claimant the amount of EUR 5,500,000 in two instalments of EUR 2,750,000 each, on the following dates respectively: 15 July 2017 and 15 September 2017.

4. By correspondence dated 17 October 2017, the Claimant put the Respondent in default of the payment of the amount of EUR 2,750,000, corresponding to the second instalment set out in the settlement agreement, setting a 10 days’ time limit in order to remedy the default.

5. On 26 January 2018, the Claimant lodged a claim against the Respondent in front of FIFA, asking that the Respondent be ordered to pay him overdue payables in the amount of EUR 2,750,000, corresponding to the second instalment of the settlement agreement, which was payable on 15 September 2017.

6. The Claimant further asked to be awarded interest of 5% on the aforementioned amount as from 15 September 2017 until the date of effective payment.

7. In reply to the claim, the Respondent affirmed that it did not pay the amount claimed by the Claimant due to financial difficulties. Furthermore, the Respondent stated that it did not receive any default notice from the Claimant and, consequently, argued that the Respondent had no overdue payables towards him.

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 26 January 2018. Consequently, the 2018 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 26 January 2018, the 2018 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 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, on 3 July 2014, the Claimant and the Respondent signed an employment contract valid as from 4 July 2014 until 30 June 2017.

6. Furthermore, the members of the Chamber observed that, on 5 June 2017, the Claimant and the Respondent signed a settlement agreement.

7. In continuation, the Chamber noted that, in accordance with the settlement agreement, the Respondent undertook to pay to the Claimant EUR 5,500,000 in two instalments of EUR 2,750,000 each, on 15 July 2017 and 15 September 2017 respectively.

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 2,750,000, corresponding to the second instalment set out in the settlement agreement.

9. In this context, the DRC took particular note of the fact that, on 17 October 2017, the Claimant sent a letter to the Respondent, by means of which he put it in default of payment of the amount of EUR 2,750,000, setting a 10 days’ time limit in order to remedy the default.

10. Subsequently, the DRC took into account that the Respondent, for its part, maintained that it did not pay the claimed amount due to financial difficulties. Moreover, the Respondent stressed that it did not receive any default notice from the Claimant and, consequently, argued that it had no overdue payables towards him.

11. As to the Respondent’s first argument, the members of the Chamber recalled the long-standing jurisprudence of the DRC, according to which financial difficulties cannot be invoked by a club in order to justify the non-fulfilment of its financial obligations.

12. In continuation, as to Respondent’s allegation that it did not receive the Claimant’s default notice and, consequently, argued that it did not have overdue payables towards the Claimant, the DRC recalled the basic principle of burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

13. With the above in mind, the members of the Chamber, after a thorough analysis of the documentation submitted by the parties, were eager to emphasise that the Claimant submitted, inter alia, the delivery report, via courier, of the default notice he sent to the Respondent. As such, the Chamber was of the opinion that the Claimant demonstrated, to its satisfaction, having duly put the Respondent in default.

14. Consequently, the DRC concluded that the Claimant 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).

15. In view of the aforementioned considerations, the members of the Chamber considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies 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.

16. Consequently, the members of the Chamber decided to reject the argumentations put forward by the Respondent in its defence.

17. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 2,750,000, corresponding to the second instalment provided in the settlement agreement.

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

19. Consequently, the Chamber 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 2,750,000.

20. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 2,750,000, as from 16 September 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. In this regard, the Chamber established that, in virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent and highlighted that, on 27 April 2016 (ref. XXX) and on 26 May 2016 (ref. XXX) both by the Single Judge of the Players’ Status Committee, and on 26 October 2016 (ref. XXX/emo) by the Dispute Resolution Chamber, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which a warning, a reprimand and a fine respectively had been imposed on the Respondent. Consequently, the DRC established that the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis, for the fourth time.

23. Moreover, the Dispute Resolution Chamber referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty.

24. Bearing in mind the considerations under numbers II./22. and II./23. above, the Chamber decided that in the event that the Respondent does not pay the amount due to the Claimant within the 30 days following the notification of the present decision, a ban from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision shall become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) 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 to the Claimant, within 30 days as from the date of notification of this decision, overdue payables in the amount of EUR 2,750,000, plus interest at the rate of 5% p.a. as from 16 September 2017 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid to the Claimant 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. Any further claim lodged by the Claimant is rejected.

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 Dispute Resolution Chamber of every payment received.

6. In the event that the amount due to the Claimant is not paid by the Respondent within 30 days as from the date of notification of this decision, the Respondent shall be banned from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision.

*****

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