F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 6 December 2017

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 6 December 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mario Gallavotti (Italy), 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 1 February 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 30 November 2017.

2. On an unspecified date, the Respondent signed a document titled “Letter of Guarantee” (hereinafter: the debt acknowledgement), which reads as follows:

“[The Respondent] guarantees to pay to [the Claimant] in the amount of 9,000,000 for May, 9,000,000 for June until 10.07.2017 and compensation for dismissal of a worked period in the amount of 3,157,894”.

3. By correspondence dated 13 September 2017, the Claimant put the Respondent in default of payment of the total amount of 7,657,894 setting a 10 days’ time limit in order to remedy the default.

4. On 6 October 2017 and subsequently completed on 31 October 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 7,657,894.

5. In this regard, the Claimant explained that, in June 2017, the Respondent informed him that it was no longer interested in his servicers, on which occasion he received the debt acknowledgement from the Respondent. The Claimant held that he only received 13,500,000 from the Respondent out of the total amount acknowledged as outstanding by the Respondent. Furthermore, the Claimant sustained that the remaining amounts in accordance with the debt acknowledgement were to be paid until 10 July 2017 at the latest.

6. The Claimant further asked to be awarded interest as of the respective due date and that the Respondent be ordered to pay “all the costs related to the present case, including legal fees”.

7. In reply to the claim, the Respondent confirmed the “the indebtedness to the player…in the amount of 7,657,894” and held that it “doesn’t refuse the obligation to pay” but due to “temporary financial difficulties it is impossible to pay at the present moment”, requesting to extend the deadline for payment until 31 December 2017.

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 6 October 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 6 October 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 1 February 2017, the Claimant and the Respondent signed an employment contract valid as from the date of signature until 30 November 2017. Furthermore, the DRC recalled that on an unspecified date, the Respondent signed the debt acknowledgement by means of which it undertook the obligation to pay to the Claimant 9,000,000 for the month of May 2017, 9,000,000 for the month of June 2017 - both amounts payable at the latest on 10 July 2017 -, as well as the amount of 3,157,894.

6. The Chamber observed, that on 6 October 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 7,657,894. In this regard, the Chamber observed that the Claimant asserted that he only received 13,500,000 from the Respondent out of the total amount the Respondent undertook to pay to him in accordance with the mentioned debt acknowledgement. Moreover, the members of the Chamber further recalled that according to the Claimant, the remaining allegedly outstanding amount in accordance with the debt acknowledgement was to be paid until 10 July 2017 at the latest.

7. In this context, the DRC took particular note of the fact that, on 13 September 2017, the Claimant put the Respondent in default of payment of the total amount of 7,657,894, setting a 10 days’ time limit 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 Chamber took into account that the Respondent, for its part, confirmed the outstanding debt to the player in the amount of 7,657,894, as well as its obligation in respect to the corresponding payment, and that it maintained that it was “impossible to pay at the present moment” due to “temporary financial difficulties”. In addition, it has remained uncontested by the Respondent that the full amount of the debt acknowledgement was payable to the Claimant until 10 July 2017 at the latest.

10. In this regard, the DRC considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in order 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.

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

12. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of 7,657,894 corresponding to the unpaid amount in accordance with the debt acknowledgement, amount which was due to be remitted at the latest on 10 July 2017.

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 7,657,894.

15. 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 the relevant amount, as of the day following the day on which the relevant payment fell due, until the date of effective payment, as requested by the Claimant.

16. Furthermore, as regards the claimed legal fees, the DRC referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC decided to reject the Claimant’s request relating to legal fees.

17. In continuation, taking into account the consideration under number II./13. 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 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 18 May 2017 and on 6 September 2017 (, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis in three different matters, as a result of which a warning, a reprimand and a fine, respectively, had been imposed on the Respondent by the DRC and the DRC judge.

19. Consequently, the members of the Chamber established that the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis for the fourth time.

20. 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.

21. Bearing in mind the considerations under numbers II/18., II/19., and II/20. 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 7,657,894, plus interest at the rate of 5% p.a. as from 11 July 2017 until the date of effective payment.

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 request filed 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 DRC 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