F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 20 September 2017

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 20 September 2017,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Theo van Seggelen (Netherlands), 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 12 January 2017, 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 the date of signature until 31 May 2017.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant, inter alia, a remuneration in the amount of EUR 137,500, which was payable as follows:

- EUR 12,500 on 15 January 2017;

- EUR 25,000 on 18 January 2017;

- EUR 25,000 on 28 February 2017;

- EUR 25,000 on 31 March 2017;

- EUR 25,000 on 30 April 2017;

- EUR 25,000 on 31 May 2017.

3. By correspondence dated 4 July 2017, the Claimant put the Respondent in default of payment of the total amount of EUR 135,000 setting a time limit expiring on 15 July 2017 in order to remedy the default.

4. On 18 July 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 135,000. In his claim, the Claimant explained that he has only received EUR 2,500 from the Respondent.

5. The Claimant further asks to be awarded interest as follows:

 5% on EUR 10,000 as from 16 January 2017;

 5% on EUR 25,000 as from 19 January 2017;

 5% on EUR 25,000 as from 1 March 2017;

 5% on EUR 25,000 as from 1 April 2017;

 5% on EUR 25,000 as from 1 May 2017;

 5% on EUR 25,000 as from 1 June 2017.

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

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 18 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 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 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016), 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 2016), and considering that the present claim was lodged on 18 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 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 12 January 2017, the Claimant and the Respondent signed an employment contract valid as from the date of signature until 31 May 2017, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the amount of EUR 137,500. Said amount was supposed to be paid with an instalment of EUR 12,500 due on 15 January 2017, as well as with 5 instalments of EUR 25,000 each, due on 18 January 2017, 28 February 2017, 31 March 2017, 30 April 2017 and 31 May 2017, respectively.

6. The Chamber observed, that on 18 July 2017, 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 135,000. In this regard, the Chamber observed that the Claimant held that from the EUR 137,500 he was supposed to receive for the duration of the contract, he has only received EUR 2,500 from the Respondent.

7. In this context, the DRC took particular note of the fact that, on 4 July 2017, the Claimant put the Respondent in default of payment of the total amount of EUR 135,000, setting a time limit expiring on 15 July 2017 in order to remedy the default.

8. 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).

9. Subsequently, the DRC 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 considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.

11. Having said this, the DRC acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant a remuneration of EUR 137,500, amount that was payable in accordance with the instalments detailed in point I.2 above. Moreover, the DRC duly noted that the Claimant held that he has only received EUR 2,500, instead of EUR 137,500 as established in the contract.

12. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

13. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 135,000, corresponding to the remaining outstanding amount in accordance with the contract.

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

15. 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 135,000.

16. 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 each of the relevant payments, as of the day following the day on which the relevant payments fell due, until the date of effective payment, as requested by the Claimant.

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

18. The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. In this context, the DRC highlighted that, on 29 October 2015 and 19 June 2017, respectively, 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 fines had been imposed on the Respondent by the Single Judge of the Players’ Status Committee.

19. Along this line, the Chamber further stressed that, on 25 August 2017, the Respondent had already been found by the Bureau of the Players’ Status Committee (Ref. No. XXX), for the third time, to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which in the event that the Respondent does not pay the amount due in accordance with said decision, within the 30 days following its notification, a ban from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the mentioned decision shall become effective on the Respondent.

20. Consequently, the Chamber established that, in the present matter, the Respondent is found to have delayed a due payment for more than 30 days without a prima facie contractual basis for the fourth time.

21. Along these lines, the DRC 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.

22. Bearing in mind the considerations under numbers II.17., II.18., II.19., II.20., and II.21. above, the DRC 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 two next entire and consecutive registration periods 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.

23. In this regard, the DRC considered important to clarify that should the Respondent fail to pay the amount awarded by the Bureau of the Players’ Status Committee in case Ref. No. XXX, as well as the amount awarded in the present matter, the registration ban imposed in the present matter would run concurrently with the ban which will be eventually imposed in case Ref. No. XXX

III. Decision of the Dispute Resolution Chamber

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 135,000, 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 10,000 as from 16 January 2017;

b. 5% p.a. on the amount of EUR 25,000 as from 19 January 2017;

c. 5% p.a. on the amount of EUR 25,000 as from 1 March 2017;

d. 5% p.a. on the amount of EUR 25,000 as from 1 April 2017;

e. 5% p.a. on the amount of EUR 25,000 as from 1 May 2017;

f. 5% p.a. on the amount of EUR 25,000 as from 1 June 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 of every payment received.

5. 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 two next entire and consecutive registration periods following the notification of the present decision.

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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