F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 3 August 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 3 August 2017,

by Theo Van Seggelen (Netherlands), DRC judge,

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 1 July 2015, 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 15 June 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant, in the currency of Country D “by the exchange rate on the day of issuing the invoice”, the following amounts:

- a monthly salary of EUR 6,155;

- a housing allowance of EUR 500 monthly.

3. By correspondence dated 8 March 2017, the Claimant put the Respondent in default of payment of the amount of EUR 23,292.50, corresponding to outstanding salaries for EUR 21,542.50 and housing allowance for EUR 1,750, comprising the period from March until half of June 2016. By means of said correspondence, the Claimant set a 10 days’ time limit in order for the Respondent to remedy the default.

4. On 21 April 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 23,292.50 corresponding to:

- EUR 21,542.50 for salaries from March until half of June 2016;

- EUR 1,750 for housing allowance from March until half of June 2016.

5. The Claimant further asked to be awarded of interest of 5% p.a. as from the due dates.

6. In reply to the claim, the Respondent held that it paid all the outstanding amounts to the Claimant on 2 May 2017 and submitted non-translated payment slips for the amount of 106,012.78 in the currency of Country D.

7. In his replica, the Claimant acknowledged receipt of the above-mentioned payment, which according to the Claimant corresponds to the amount of EUR 14,191, and, consequently, reduced his claim to EUR 9,101.50 plus 5% interest as from the due dates, broken-down as follows:

- EUR 4,274 as part of the monthly salary for May 2016 plus 5% interest as of 1 June 2016;

- EUR 3,077.50 for half of June 2016 plus 5% interest as of 1 July 2016;

- EUR 1,750 for the housing allowance from March until half of June 2016 plus 5% interest as of 1 April, 1 May, 1 June and 1 July 2016 respectively.

8. Despite having been invited to do so, the Respondent did not submit any further comments.

II. Considerations of the DRC judge

1. First of all, the DRC judge analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 21 April 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 judge 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) he 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 judge 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 21 April 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 judge and the applicable regulations having been established, the DRC judge entered into the substance of the matter. In this respect, the DRC judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC judge 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.

5. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 1 July 2015 until 15 June 2016, in accordance with which the Claimant was entitled to receive from the Respondent, in the currency of Country D, a monthly salary of EUR 6,155 and an housing allowance of EUR 500 monthly.

6. 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 amount of EUR 23,292.50, corresponding to salaries in the amount of EUR 21,542.50 and to housing allowance in the amount of EUR 1,750, for the period from March until 15 June 2016.

7. In this context, the DRC judge took particular note of the fact that, on 8 March 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit expiring on 18 March 2017 in order to remedy the default.

8. Consequently, the DRC judge 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 judge took into account that the Respondent, for its part, held that it paid all the outstanding amounts to the Claimant and submitted payment slips, dated 2 May 2017, for the amount of 106,012.78 in the currency of Country D.

9. Furthermore, the DRC judge noted that the Claimant, in his replica, acknowledged receipt of a payment of EUR 14,191 from the Respondent on 2 May 2017 and, consequently, reduced the claimed amount to EUR 9,101.50 plus 5% interest as from the due dates, corresponding to:

- EUR 4,274 as part of the monthly salary for May 2016 plus 5% interest as of 1 June 2016;

- EUR 3,077.50 for June 2016 plus 5% interest as of 1 July 2016;

- EUR 1,750 for the housing allowance from March until 15 June 2016 plus 5% interest as of 1 April, 1 May, 1 June and 1 July 2016 respectively.

10. Subsequently, the DRC judge took into account that the Respondent, for its part, failed to present its reply to the Claimant’s final request, in spite of having been invited to do so.

11. On account of the above, the DRC judge concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

12. As such, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 9,101.50.

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

14. Consequently, the DRC judge 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 9,101.50.

15. 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 the amount of EUR 9,101.50 as follows:

- as of 1 April 2016 on the amount of EUR 500, until the date of effective payment;

- as of 1 May 2016 on the amount of EUR 500, until the date of effective payment;

- as of 1 June 2016 on the amount of EUR 4,774, until the date of effective payment;

- as of 1 July 2016 on the amount of EUR 3,327.50, until the date of effective payment.

16. In continuation, taking into account the consideration under number II./14. above, the DRC judge 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.

17. The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. 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 judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

18. In this connection, the DRC judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

III. Decision of the DRC judge

1. The claim of the Claimant, Player A, is accepted.

2. The Respondent, Club C, has to pay to the Claimant overdue payables, within 30 days as from the date of notification of this decision, in the amount of EUR 9,101.50 plus 5% interest p.a. as follows:

a) as of 1 April 2016 on the amount of EUR 500, until the date of effective payment;

b) as of 1 May 2016 on the amount of EUR 500, until the date of effective payment;

c) as of 1 June 2016 on the amount of EUR 4,774, until the date of effective payment;

d) as of 1 July 2016 on the amount of EUR 3,327.50, until the date of effective payment.

3. 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.

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 judge of every payment received.

5. 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

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives