F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 17 June 2019

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 17 June 2019,

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 (formerly known as Former 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 18 July 2016, the Player of Country B, Player A (hereinafter: the Claimant) and the Club of Country D, Club C (formerly known as Former Club C, hereinafter: the Respondent), signed an employment contract valid for the 2016/2017 season and on 25 July 2016 the parties signed an addendum to the employment contract.

2. On 6 May 2017, the Claimant and the Respondent signed a termination agreement.

3. In accordance with the termination agreement, the Respondent undertook to pay to the Claimant a total amount of USD 151,800 payable as follows:

- USD 5,000 “after signing of this agreement”;

- USD 36,700 on 5 July 2017;

- USD 36,700 on 5 September 2017;

- USD 36,700 on 5 November 2017;

- USD 36,700 on 5 February 2018;

4. On 28 September 2018, the Claimant put the Respondent in default of payment of USD 151,800 setting a 10 days’ time limit in order to remedy the default.

5. On 12 November 2018, 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 USD 151,800 corresponding to the total amount established in the termination agreement.

6. The Claimant further asked to be awarded interest of 5% p.a. as from the date of payment of each instalment of the termination agreement.

7. In its reply to the claim, the Respondent argued that it paid the Claimant USD 5,000 in cash after the signature of the termination agreement. In addition, the Respondent admitted that the Claimant has not received USD 146,800. In this regard, the Respondent explained that Country D is “globally sanction by USA and we are not able transfer any money, so we requested the [Claimant] refer to our club for received in cash because he is playing in other Club of Country D” (note: no document on file).

8. In his replica, the Claimant acknowledged the payment made by the Respondent for an amount of USD 5,000 and therefore, reduced the claimed amount to USD 146,800. In this respect, the Claimant argued that the “global embargo” is not an “excuse” “to no comply with its obligations towards [him]”. Moreover, the Claimant argued that since he still lives in Country D and has an account in said country, the Respondent will be able to pay him the outstanding amount.

9. Despite having been invited to do so, the Respondent did not submit its duplica.

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 12 November 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 June 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 June 2018), and considering that the present claim was lodged on 12 November 2018, the June 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 DRC acknowledged that following the conclusion of an employment contract on 18 July 2016 and an addendum to the contract on 25 July 2016, the Claimant and the Respondent signed on 6 May 2017 a termination agreement by means of which the Respondent undertook to pay to the Claimant a total amount of USD 151,800 payable as follows:

- USD 5,000 “after signing of this agreement”;

- USD 36,700 on 5 July 2017;

- USD 36,700 on 5 September 2017;

- USD 36,700 on 5 November 2017;

- USD 36,700 on 5 February 2018;

6. 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 USD 151,800 corresponding to the total amount established in the termination agreement.

7. In this context, the members of the DRC took particular note of the fact that, on 28 September 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.

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 members of the Chamber took into account that the Respondent, for its part, held that it remitted a payment of USD 5,000 in cash after the signature of the termination agreement. Moreover, the DRC observed that the Respondent admitted that the Claimant has not received USD 146,800 considering that it is “not able transfer any money” since Country D is “globally sanction by USA”.

10. In this respect, the DRC noted that the Claimant acknowledged the payment made by the Respondent for an amount of USD 5,000 and therefore, reduced the claimed amount to USD 146,800.

11. In this context, 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 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.

12. Consequently, the DRC decided to reject the argumentation put forward by the Respondent in its defence.

13. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit to the Claimant the total amount of USD 146,800 corresponding to last four instalments of the termination agreement.

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

15. 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 USD 146,800.

16. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant interest on the above-mentioned amount as follows:

- 5% p.a. on the amount of USD 36,700 as from 6 July 2017 until the date of effective payment;

- 5% p.a. on the amount of USD 36,700 as from 6 September 2017 until the date of effective payment;

- 5% p.a. on the amount of USD 36,700 as from 6 November 2017 until the date of effective payment;

- 5% p.a. on the amount of USD 36,700 as from 6 February 2018 until the date of effective payment.

17. In continuation, taking into account the consideration under number II./14. above, the Chamber 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 April 2019, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis. In view of the above, the DRC decided to impose a reprimand on the Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.

19. 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 a more severe penalty.

20. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

21. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

22. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

23. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 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 the amount of USD 146,800 as overdue payables, plus 5% interest p.a. as follows:

- 5% p.a. on the amount of USD 36,700 as from 6 July 2017 until the date of effective payment;

- 5% p.a. on the amount of USD 36,700 as from 6 September 2017 until the date of effective payment;

- 5% p.a. on the amount of USD 36,700 as from 6 November 2017 until the date of effective payment;

- 5% p.a. on the amount of USD 36,700 as from 6 February 2018 until the date of effective payment.

3. Any further claim lodged by the Claimant is rejected.

4. A reprimand is imposed on the Respondent.

5. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amounts mentioned under point 2. above.

6. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount plus interest due in accordance with point 2. above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

9. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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:

Emilio García Silvero

Chief Legal Officer

Encl: CAS directives