F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 29 April 2018

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 29 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 31 August 2016, the Claimant and the Respondent signed an employment contract, valid as from 31 August 2016 until 30 June 2017.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia ten monthly salary payments of EUR 1,025 each, the first payment falling due on 15 October 2016 and the other ones in the following months.

3. By correspondence dated 2 February 2018, the Claimant put the Respondent in default of payment of the amount of EUR 4,100, plus 5% interest p.a. as from the due dates, setting a 10 days’ time limit in order to remedy the default.

4. 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 4,100, according to the Claimant corresponding to the outstanding salaries for the months of March, April, May and June 2017, plus 5% interest p.a. until the effective date of payment as follows:

 5% interest p.a. on the amount of EUR 1,025 as from 1 April 2017;

 5% interest p.a. on the amount of EUR 1,025 as from 1 May 2017;

 5% interest p.a. on the amount of EUR 1,025 as from 1 June 2017;

 5% interest p.a. on the amount of EUR 1,025 as from 1 July 2017.

5. Despite being invited to do so, the Respondent did not reply to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 22 February 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter; Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of 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 2018), the Dispute Resolution Chamber 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 Chamber 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 22 February 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 Chamber and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the DRC 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 members of the Chamber acknowledged that, on 31 August 2016, the Claimant and the Respondent entered into a contract valid for the period between 31 August 2016 and 30 June 2017.

6. The Chamber further acknowledged that pursuant to said contract, the Respondent undertook to pay to the Claimant 10 monthly salary payments of EUR 1,025 each, the first one due on 15 October 2016 and the other ones in the following months.

7. Furthermore, the DRC took note that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the amount of EUR 4,100, which corresponds to the monthly salaries for the months of March, April, May and June 2017.

8. In this context, the members of the DRC took particular note of the fact that, on 2 February 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit of 10 days 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 Chamber 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.

11. Furthermore, as a consequence of the aforementioned consideration, the members of the Chamber concurred that in accordance with art. 9 par. 3 of the Procedural Rules, they shall take a decision upon the basis of the documents on file, in other words, upon the statements and documents presented by the Claimant.

12. Having said this, the DRC acknowledged that, in accordance with the contract signed by and between the parties, the Respondent was inter alia obliged to pay to the Claimant the salaries for March, April, May and June 2017 in the amount of EUR 1,025 each, due on the 15th day of the following month.

13. 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.

14. 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 4,100 in accordance with the contract concluded between the parties.

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

16. 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 4,100.

17. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payment(s) as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

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

19. The Chamber established that in virtue of the aforementioned article, it has competence to impose sanctions on the Respondent. In this context, the members of the Chamber highlighted that on 2 November 2015 and 4 May 2016, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and, on 4 May 2016, without the Respondent having responded to the relevant claim, as a result of which a fine was imposed on the Respondent by the Dispute Resolution Chamber. Consequently, the Chamber established that, for the third time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.

20. In this context, 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.

21. Bearing in mind the considerations under numbers II./18. and II./19. 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 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 4,100, 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 1,025 as from 16 April 2017;

b. 5% p.a. on the amount of EUR 1,025 as from 16 May 2017;

c. 5% p.a. on the amount of EUR 1,025 as from 16 June 2017;

d. 5% p.a. on the amount of EUR 1,025 as from 16 July 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. 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.

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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