F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 22 February 2019

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 22 February 2019,

by Philippe Diallo (France), 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 8 August 2016, 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 (hereinafter: the contract) valid as from 8 August 2016 until 31 May 2019.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia a monthly salary of EUR 32,500 for the period of 30 August 2017 until 30 May 2018.

3. By correspondence dated 6 June 2018, the Claimant put the Respondent in default of payment of EUR 16,250 corresponding to the remainder of the salary of December 2017 setting a 10 days’ time limit in order to remedy the default.

4. On 19 October 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 EUR 16,250 corresponding to the remainder of the salary of December 2017.

5. The Claimant further asks that the Respondent be ordered to pay legal costs in the amount of EUR 5,000 and that the Respondent be ordered to pay the player “une astreinte de EUR 100 par jour de retard jusqu’au versement des sommes dues”.

6. In spite of having been invited to do so, the Respondent has not replied to the claim.

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 19 October 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 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 2018) 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 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 2018), and considering that the present claim was lodged on 19 October 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 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 8 August 2016 until 31 May 2019, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, a monthly remuneration of EUR 32,500 for the period of 30 August 2017 until 30 May 2018.

6. As established before, the DRC Judge duly took note that the Claimant lodged a claim against the Respondent in front of FIFA on 19 October 2018, maintaining that the Respondent has overdue payables towards him in the total amount of EUR 16,250 corresponding to the remainder of the salary of December 2017 and further asks that the Respondent be ordered to pay legal costs in the amount of EUR 5,000 and that the Respondent be ordered to pay to the player “une astreinte de EUR 100 par jour de retard jusqu’au versement des sommes dues”.

7. In this context, the DRC judge took particular note of the fact that, on 6 June 2018, the Claimant put the Respondent in default of payment of the amount of EUR 16,250 setting a time limit of 10 days 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, 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 judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.

11. Having said this, the DRC judge acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant a monthly remuneration in the amount of EUR 32,500.

12. Taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

13. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 16,250 corresponding to the remainder of the salary of December 2017.

14. In continuation, the DRC judge referred to the Claimant’s request for “une astreinte de EUR 100 par jour de retard jusqu’au versement des sommes dues ». In this respect, the DRC judge established that the request of the Claimant cannot be granted as there is no contractual basis in this regard.

15. Moreover, the DRC judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

16. 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.

17. 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 16,250.

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

19. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the DRC judge highlighted that, on 25 September 2018 and 26 November 2018, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and with the Respondent having responded to the relevant claim as a result of which a warning and a reprimand had respectively been imposed on the Respondent by the DRC and the DRC judge respectively. Moreover, the DRC judge further highlighted that, on 12 February 2019, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and without the Respondent having responded to the relevant claim, as a result of which a fine had been imposed on the Respondent by the DRC.

20. Moreover, the DRC judge 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.

21. Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as the considerations under numbers II./17. and II./18. above, the DRC judge decided to impose a more severe fine on the Respondent in accordance with art. 12nis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of EUR 16,250 as well as the aggravating circumstance of a repeated offence, the DRC judge regarded a fine of CHF 2,000 as appropriate and hence decided to impose said fine on the Respondent.

22. Finally the DRC judge concluded by establishing that any further claim lodged by the Claimant is rejected.

II. Decision of the DRC judge

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 16,250.

3. In the event that the amount due to the Claimant is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will apply as of the expiry of the stipulated time limits and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for its 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 judge of every payment received.

6. The Respondent is ordered to pay a fine in the amount of CHF 2,000. 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

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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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives