F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 27 September 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 27 September 2018,

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. In June 2016, the player, Player A, (hereinafter: the Claimant) and the club, Club C, (hereinafter: the Respondent) signed an employment contract valid as from 1 August 2016 until 31 May 2018.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly salary of 600,000 as from 1 August 2016.

3. Furthermore, according to the employment contract, the Respondent undertook to provide to the Claimant “a bachelor accommodation as per the Club’s policy”. Furthermore, according to Article 6) d. of the employment contract, “(S)ubject to the Player giving one month prior intimation to the Club of the date of travel, the Club shall bear the travelling expenses of economy class air travel once in a year for two ways i.e. from Country D to Country E and Country E to Country D”.

4. By correspondence dated 18 May 2018, the Claimant put the Respondent in default of payment of 3,620,000, granting the Respondent a time limit expiring on 29 May 2018 in order to remedy the default.

5. On 27 July 2018, and completed on 19 August 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 3,620,000, amount that according to the Claimant corresponds to the following:

a. 400,000, corresponding to salary for 20 days in August 2016;

b. 3,000,000, corresponding to five monthly salaries of 600,000 each for the period from 1 January 2017 until 31 May 2017;

c. 160,000 corresponding to accommodation expenses from 1 January 2017 until 31 May 2017;

d. 60,000 corresponding to an economy class flight ticket.

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 27 July 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 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 2018), and considering that the present claim was lodged on 27 July 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 1 August 2016 until 31 May 2018.

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 3,620,000, made up as follows:

a. 400,000, corresponding to salary for 20 days in August 2016;

b. 3,000,000, corresponding to five monthly salaries of 600,000 each for the period from 1 January 2017 until 31 May 2017;

c. 160,000 corresponding to accommodation expenses from 1 January 2017 until 31 May 2017;

d. 60,000 corresponding to an economy class flight ticket.

7. In this context, the DRC judge took particular note of the fact that, on 18 May 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, giving the Respondent a time limit expiring on 29 May 2018 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. In continuation, the DRC judge noted that, in accordance with the employment contract, the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of 600,000 as from 1 August 2016.

12. The DRC judge further recalled that, according to the employment contract, the Respondent undertook to provide to the Claimant “a bachelor accommodation as per the Club’s policy”, as well as a two-way flight ticket in economy class, once a year from Country D to Country E, subject to the Claimant giving one month prior intimation to the Respondent of the date of travel.

13. With regard to the alleged outstanding monthly salaries, and 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 these overdue payables with sufficient documentary evidence.

14. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s salary in the amounts of 400,000 corresponding to salary for 20 days in August 2016 and 3,000,000 corresponding to five monthly salaries of 600,000 each for the period as from 1 January 2017 until 31 May 2017.

15. In continuation, bearing in mind art. 12 par. 3 of the Procedural Rules, which deals with the principle of the burden of proof, the DRC judge turned to the Claimant’s request for outstanding remuneration corresponding to accommodation and travel expenses. In this regard, the DRC judge firstly referred to the employment contract and noted that it did not provide any monetary value relating to accommodation.

16. Furthermore, and taking into account the documentation on file, the DRC judge concluded that the Claimant had not fully substantiated his claim pertaining to overdue payables with pertinent documentary evidence. That is, there is no evidence on file demonstrating that the Claimant would be entitled to receive the amount of 160,000 corresponding to accommodation expenses. Furthermore, no evidence was presented demonstrating that the Claimant had incurred costs in the amount of 60,000 for air tickets. Consequently, the DRC judge decided to reject the Claimant’s claim pertaining to accommodation and travel expenses.

17. 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 3,400,000.

18. 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.

19. 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 3,400,000.

20. Moreover, the DRC judge decided that any further request filed by the Claimant is rejected.

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

22. 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 18 April 2018, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which a warning had been imposed on the Respondent by the DRC judge.

23. 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.

24. Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as the considerations under numbers II./22. and II./23. above, the DRC judge 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 amount due of 3,400,000 the DRC judge regarded a fine amounting to CHF 5,000 as appropriate and hence decided to impose said fine on the Respondent.

III. 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 overdue payables in the amount of 3,400,000 within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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 5,000. 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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives