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 26 February 2015, the Player of Country B, Player A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent), signed an employment contract valid as from 27 February 2015 until 30 June 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant monthly accommodation expenses in the amount of 40,240 “not later than 15th day of each month”.

3. According to an annex to the employment contract the Respondent undertook to pay to the Claimant a monthly salary of EUR 57,472. Said annex entitles the Respondent to deduct 13% income tax from the player’s salary. Further, the annex defines that all payments “are made in Currency of Country D-noncash form, by means of a bank transfer” and that the exchange rate on the last day of each month applies.

4. According to the employment contract, the monthly salaries shall be paid “in terms provided by the current law and the Employer’s internal regulations”.

5. By correspondence dated 22 May 2017, the Claimant put the Respondent in default of payment of the amount of EUR 150,000 corresponding to the salaries of April, May and June 2016 as well as EUR 6,247.40 corresponding to 10 months of accommodation expenses, setting a 10 days’ time limit in order to remedy the default.

6. On 26 June 2017, the Claimant and the Respondent signed a settlement agreement, according to which the Respondent confirmed a debt towards the player in the total amount of EUR 160,478 and assured to comply with the following payment schedule:

- EUR 53,493 until 31 August 2017;

- EUR 53,493 until 30 September 2017;

- EUR 53,493 until 31 October 2017.

7. Moreover, art. 4 of the settlement agreement established that: “In case of a delay with more than 3 […] days in the payment of any of the instalments stipulated in paragraph 3 of the present Agreement, the whole amount of EUR 160,478 […] would automatically become mature. In the event that in 3 […] days after an invitation this amount is not paid in full, the present agreement would be automatically considered null and void and the Parties agree that the Player would have the right to initiate arbitration proceedings before the competent bodies of FIFA (such as Dispute Resolution Chamber) for all outstanding amounts due to him under the Labor Agreement including interest in its full amount accumulated at the date of effective payment and compensations for any damages caused, reduced with the instalments already made, if any.”

8. On 13 September 2017, the Claimant sent a notification to the Respondent requesting payment of the amount of EUR 160,478 within 3 days, since the first instalment due under the settlement agreement remained unpaid.

9. On 18 September 2017, the Respondent replied to the Claimant, requesting to postpone the payment until November 2017 due to “lack of spare money”.

10. On 4 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 total amount of EUR 156,297.40 corresponding to the salaries of April, May and June 2016 as well as to 10 months of accommodation expenses.

11. The Claimant further requested to be awarded interest as follows:

- 5% p.a. as of 16 May 2016 on the amount of EUR 50,000;

- 5% p.a. as of 16 June 2016 on the amount of EUR 50,000;

- 5% p.a. as of 16 July 2016 on the amount of EUR 50,000;

- 5% p.a. as of 22 May 2017 on the amount of EUR 6,297.40.

Furthermore, the Claimant requests reimbursement of his legal costs.

12. In his arguments, the Claimant held that according to the Labor Code of Country D, salaries become due no later than “15 calendar days as of the end of the period for which it accrued”.

13. In spite of having been invited to do so, the Respondent has not replied 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 4 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, the Chamber 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 4 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 Chamber 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 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 the Claimant and the Respondent signed an employment contract including an annex valid as of 27 February 2015 until 30 June 2016. In accordance with said employment contract the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of EUR 50,000, after the deduction of the income tax, as well as monthly accommodation expenses in the amount of 40,240.

6. Furthermore, the Chamber noted that the parties concluded a settlement agreement, according to which the Respondent was entitled to receive the total amount of EUR 160,478 in three instalments. According to its art. 4, the settlement agreement would become null and void if one instalment remained unpaid for more than 3 days.

7. 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 EUR 156,297.40 corresponding to to the salaries of April, May and June 2016 as well as to 10 months of accommodation expenses.

8. In this context, the DRC took particular note of the fact that, on 22 May 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.

9. Consequently, the members of 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).

10. Subsequently, the DRC 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 Chamber 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 DRC concurred that in accordance with art. 9 par. 3 of the Procedural Rules it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

12. Furthermore, the Chamber established that the settlement agreement, in accordance with its art. 4, became null and void after the Respondent failed to pay the first instalment.

13. Having said this, the members of the Chamber acknowledged that it remained undisputed that the Claimant was entitled to a monthly salary of EUR 50,000 in accordance with the employment contract and the annex, and therefore that the Respondent was obliged to pay to the Claimant EUR 150,000 corresponding to the salaries of April, May and June 2016 plus 10 months of accommodation expenses.

14. Taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had only partially substantiated his claim pertaining to overdue payables with pertinent documentary evidence. That is, the amount regarding the accommodation expenses to be eventually awarded to the Claimant has to be established in Currency of Country D in accordance with the contract and not in EUR as claimed by the Claimant.

15. On account of the aforementioned considerations and the documentary evidence provided by the Claimant, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 150,000 and 402,400 corresponding to the salaries of April, May and June 2016 plus 10 months of accommodation expenses.

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

17. Consequently, the members of the Chamber 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 150,000 and 402,400.

18. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC 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.

19. Furthermore, as regards the claimed legal expenses, the Chamber 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 expenses.

20. Moreover, the members of the Chamber decided that any further request filed by the Claimant is rejected.

21. In continuation, taking into account the consideration under number II./16. 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.

22. The Chamber further established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that the Respondent did not reply to the claim, the DRC decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amounts due of EUR 150,000 and 402,400, the DRC regarded a fine amounting to CHF 15,000 as appropriate and hence decided to impose said fine on the Respondent.

23. In this connection, the members of the Chamber 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 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 amounts of EUR 150,000 and 402,400, 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 50,000 as from 16 May 2016;

b. 5% p.a. on the amount of EUR 50,000 as from 16 June 2016;

c. 5% p.a. on the amount of EUR 50,000 as from 16 July 2016.

d. 5% p.a. on the amount of 402,400 as from 22 May 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 DRC judge of every payment received.

6. The Respondent is ordered to pay a fine in the amount of CHF 15,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

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