F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 23 April 2018

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 23 April 2018,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Jon Newman (USA), 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 20 May 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 (hereinafter: the contract) valid as from the date of signature until 30 November 2017.

2. In accordance with the contract, the Respondent undertook to pay to the Claimant inter alia the amount of USD 20,000 “to be paid at the end of July” and USD 60,000 in six monthly salaries of USD 10,000 from June 2017 to November 2017.

3. By correspondence dated 16 January 2018, the Claimant put the Respondent in default of payment of USD 80,000 setting a 10 days’ time limit in order to remedy the default.

4. On 17 December 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 80,0000 corresponding to:

- USD 60,000 corresponding to his salaries as from June 2017 until November 2017 (i.e. 10,000*6);

- USD 20,000 corresponding to the payment due at the end of July (cf. point 2 above).

5. The Respondent submitted its response to the claim after notification of the closure of the investigation in the present 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 17 December 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 2017 and 2018 editions 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 analyzed 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 (editions 2016 and 2018) and considering that the present claim was lodged on 17 December 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 Chamber 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 on 20 May 2017 the Claimant and the Respondent signed an employment contract valid as from the date of signature until 30 November 2017.

6. In continuation, the Chamber noted that in accordance with the contract, the Respondent undertook to pay to the Claimant inter alia the amount of USD 20,000 “to be paid at the end of July” and USD 60,000 in six monthly salaries of USD 10,000 each from June 2017 to November 2017.

7. The DRC further observed that, on 17 December 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 USD 80,000 corresponding to:

- USD 60,000 corresponding to his salaries as from June 2017 until November 2017 (i.e. 10,000*6);

- USD 20,000 corresponding to the payment due at the end of July.

8. In this context, the DRC took particular note of the fact that, on 16 January 2018, the Claimant put the Respondent in default of payment of the amount of USD 80,000 setting a 10 days’ time limit in order to remedy the default.

9. 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).

10. Subsequently, the DRC observed that the Respondent, for its part, in spite of having been invited to do so, failed to present its response to the claim of the Claimant within the relevant time-limit. In fact, a reply of the Respondent was only received after the investigation-phase of the matter had already been concluded. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Chamber’s constant jurisprudence in this regard, the DRC decided not to take into account the reply of the Respondent and established that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase, in casu, upon the statements and documents presented by the Claimant.

11. Having said this, the DRC acknowledged that, in accordance with the contract, the Respondent undertook to pay to the Claimant inter alia the amount of USD 20,000 “to be paid at the end of July” and USD 60,000 in six monthly salaries of USD 10,000 each from June 2017 to November 2017.

12. On account of the aforementioned considerations and the documentary evidence provided by the Claimant, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 80,000 corresponding to his salaries from June 2017 until November 2017 (USD 60,000) and the USD 20,000 corresponding to the payment due at the end of July.

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

14. 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 80,000.

15. In continuation, taking into account the consideration under number II./12. 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.

16. The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. In this context, the Chamber highlighted that, on 19 May 2017 and 27 November 2017, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and without the Respondent having responded to the relevant claims, as a result of which fines had been imposed on the Respondent by the DRC. Consequently, the Chamber established that the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis and without having answered to the claim for the third time.

17. Moreover, 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.

18. Bearing in mind the considerations under numbers II./14, II./15 and II./16. 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 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 accepted.

2. The Respondent, Club C, has to pay overdue payables in the amount of USD 80,000 to the Claimant within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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 next entire registration period 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