F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 25 January 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 25 January 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Tomislav Kasalo (Croatia), member

Pavel Pivovarov (Russia), member

Daan de Jong (The 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 8 August 2016, the player of Country B, Player A (hereinafter: Claimant), and the club of Country D, Club C (hereinafter: Respondent), concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 8 June 2017.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant the following remuneration:

a. A monthly salary of USD 8,000, “equivalent to (30000) Thirty thousand in the currency of Country D at the end of each calendar month”;

b. A signing bonus of USD 50,000, payable “at the beginning of the first round”.

3. Art. 2 of section IX of the contract stated that “the Committee and/or FIFA has jurisdiction in disputes between the club and the professional player on the terms of the contract and its implementation”.

4. By correspondence dated 25 July 2017, the Claimant put the Respondent in default of payment of USD 32,000 setting a 10 days’ time limit in order to remedy the default.

5. On 19 July 2017, the Claimant lodged a claim against the Respondent in front of FIFA, completed on 28 August 2017, asking that the Respondent be ordered to pay to him overdue payables in the total amount of USD 32,000, corresponding to his outstanding salaries for the months of February, March, April and May 2017, plus 5% interest p.a. as of “the expiry date of the employment contract”.

6. In support of his claim, the Claimant explained that after his default notice, the Respondent did not pay him the requested amount.

7. In reply to the claim, the Respondent firstly contested FIFA’s competence to take a decision in the present case. According to the club, art. 2 of section IX of the employment contract stipulated that the Sport Arbitration Center of Country D is competent to hear any dispute arising between the parties. What is more, the Respondent referred to art. 7.1.3 of the Statute of the Sport Arbitration Center of Country D, which stipulated that “the Sport Arbitration Center of Country D shall have jurisdiction over Disputes arising from contracts including an arbitration clause that refers any dispute to the Sport Arbitration Center of Country D”.

8. In addition, the Respondent acknowledged having overdue payables towards the Claimant in the total amount of 112,000 in the currency of Country D and offered a payment plan. In this regard, the Respondent proposed that the due amount be paid to the player by means of “six equal monthly instalments“.

9. With regard to the issue of FIFA’s competence, the Claimant stated that there was no clause in the contract stipulating an obligatory procedure before the Sport Arbitration Center of Country D.

10. By correspondence dated 14 January 2018, the Claimant acknowledged receipt of a payment of USD 10,000 made by the Respondent on 17 December 2017.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: the Chamber or the 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 19 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 DRC referred to art. 3 par. 2 and par. 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) the Dispute Resolution Chamber, would in principle, be 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. In continuation, the Chamber acknowledged that the Respondent contested the competence of FIFA’s deciding body on the basis of art. 2 of section IX of the employment contract invoking an alleged jurisdiction of the Sport Arbitration Center of Country D.

4. In this regard, the DRC noted that the Claimant rejected such position and insisted that FIFA has competence to deal with the present matter.

5. Taking into account the above, the Chamber emphasised that in accordance with art. 22 lit. b) of the 2016 edition of the Regulations on the Status and Transfer of Players it is competent to deal with a matter such as the one at hand, unless an independent arbitration tribunal, guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs, has been established at national level within the framework of the association and/or a collective bargaining agreement. With regard to the standards to be imposed on an independent arbitration tribunal guaranteeing fair proceedings, the Chamber referred to the FIFA Circular no. 1010 dated 20 December 2005. In this regard, the members of the Chamber further referred to the principles contained in the FIFA National Dispute Resolution Chamber (NDRC) Standard Regulations, which came into force on 1 January 2008.

6. In relation to the above, the Chamber also deemed it vital to outline that one of the basic conditions that need to be met in order to establish that another organ than the DRC can settle an employment-related dispute between a club and a player of an international dimension is that the competence of the relevant arbitration tribunal derives from a clear reference in the employment contract.

7. Therefore, while analysing whether it was competent to hear the present matter, the Dispute Resolution Chamber considered that it should, first and foremost, analyse whether the employment contract at the basis of the present dispute actually contained a clear and exclusive arbitration clause in favour of an NDRC in Country D.

8. Subsequently, the Chamber referred to the article 2 of section IX of the employment contract, which stipulates that “the Committee and/or FIFA has jurisdiction in disputes between the club and the professional player on the terms of the contract and its implementation”.

9. Taking into account the wording of the above-mentioned clause, the DRC concluded that said clause does not exclude FIFA’s jurisdiction and noted that the employment contract at the basis of the present dispute does not contain a clear and exclusive arbitration clause in favour of a national dispute resolution body, since it only refers to “the Committee” in general, and even to FIFA.

10. On account of the above, the Chamber established that the Respondent’s objection to the competence of FIFA to deal with the present matter has to be rejected and that the Dispute Resolution Chamber is competent, on the basis of art. 22 lit. b) of the Regulations on the Status and Transfer of Players, to deal with the present matter as to the substance. Consequently, the claim of the Claimant is admissible.

11. Furthermore, the DRC 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 19 July 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

12. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the members of the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC 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.

13. Having said this, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid from 8 August 2016 until 8 June 2017, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the following remuneration:

a. A monthly salary of USD 8,000, “equivalent to (30000) Thirty thousand in the currency of Country D at the end of each calendar month”;

b. A signing bonus of USD 50,000, payable “at the beginning of the first round”.

14. 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 32,000 corresponding to his outstanding salaries for the months of February, March, April and May 2017.

15. In this context, the DRC took particular note of the fact that, on 25 July 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a 10 days’ time limit in order to remedy the default.

16. Consequently, the Chamber 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).

17. Subsequently, the members of the DRC took into account that the Respondent, for its part, acknowledged having overdue payables towards the Claimant in the total amount of 112,000 in the currency of Country D and that it offered a payment plan.

18. The Chamber took note of the documents submitted by the Respondent in support of its argumentation. In this respect the DRC emphasized that according to art. 12 par. 3 of the Procedural Rules any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

19. On account of the above, and in view of the fact that the Respondent did not submit corroborating evidence that the difference between the amount claimed by the Claimant (i.e. USD 32,000) and the acknowledged amount of monies due by the Respondent (i.e. 112,000 in the currency of Country D) was paid, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for the 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.

20. Consequently, the Chamber decided to reject the argumentation put forward by the Respondent in its defence.

21. On account of the aforementioned considerations, the members of the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 32,000 corresponding to the Claimant’s outstanding salaries for the months of February, March, April and May 2017.

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

23. Notwithstanding the above, the Chamber took note that the Claimant acknowledged having received a partial payment of USD 10,000 made by the Respondent on 17 December 2017.

24. 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 22,000.

25. In addition, taking into account the Claimant’s request, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. as of “the expiry date of the employment contract”, i.e. 8 June 2017.

26. In continuation, taking into account the consideration under number II./22. 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.

27. The Dispute Resolution Chamber established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. Therefore, 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.

28. In this respect, the members of the Chamber wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to a 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 admissible.

2. The claim of the Claimant is partially accepted.

3. The Respondent, Club C, has to pay to the Claimant, within 30 days from the date of notification of this decision, overdue payables in the amount of USD 22,000 plus 5% interest p.a. as of 8 June 2017 until the date of effective payment.

4. In the event that the amount 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.

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. A warning is imposed on the Respondent.

*****

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

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives