F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 28 November 2018

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 28 November 2018,

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, Country D

as Respondent

regarding an employment-related dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 25 September 2017, the clubs of Country D, Club E and Club C (hereinafter: the Respondent), signed a loan agreement to which the player of Country B, Player A (hereinafter: the Claimant), was a party and pursuant to which he was loaned to the Respondent as from 1 August 2017 until 31 July 2018.

2. In accordance with the loan agreement, the Respondent undertook to pay the Claimant EUR 708,000 “on or before 30/09/2017” and a monthly salary of EUR 166,000, “on or before the end of each calendar month from 1/08/2017 until 31/07/2018”.

3. Following a previous correspondence dated 28 June 2018, on 26 September 2018, the Claimant put the Respondent in default of payment of EUR 1,704,000 in writing, setting a time limit of 10 days in order to remedy the default.

4. On 20 September 2018, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay him overdue payables in the amount of EUR 1,704,000, corresponding to: (i) the advance of payment of EUR 708,000 and (ii) his salaries as from February until July 2018, i.e. EUR 166,000 each month for 6 months.

5. Furthermore, in his claim, the Claimant mentioned that he had received from the Respondent the amount of EUR 996,000, which would cover his salaries as from August 2017 until January 2018 only.

6. The Claimant further asked to be awarded 5% interest p.a. as of the “day following the respective due date until the date of effective payment”.

7. In spite of having been invited to do so, the Respondent did not reply to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to: the Chamber or DRC) analysed whether it was competent to deal with the matter at hand. In this respect, the DRC took note that the present matter was submitted to FIFA on 20 September 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 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 2018), and considering that the present claim was lodged on 20 September 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 Chamber and the applicable regulations having been established, the DRC 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 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 Club E and the Respondent signed a loan agreement to which the Claimant was a party and according to which the Claimant was loaned to the Respondent as from 1 August 2017 until 31 July 2018.

6. Furthermore, the Chamber observed that, in accordance with the loan agreement, the Respondent undertook to remit to the Claimant EUR 708,000 “on or before 30/09/2017” as well as a monthly salary of EUR 166,000, “on or before the end of each calendar month from 1/08/2017 until 31/072018”.

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 1,704,000, corresponding to: (i) the advance of payment of EUR 708,000 and (ii) his salaries as from February until July 2018, i.e. EUR 166,000 each month for 6 months.

8. With his claim, the Claimant further asked to be awarded 5% interest p.a. as of the “day following the respective due date until the date of effective payment”.

9. The DRC further took note that, in his claim, the Claimant mentioned that he received from the Respondent the amount of EUR 996,000, which covers his salaries as from August 2017 until January 2018 only.

10. In this context, the members of the Chamber took particular note of the fact that, following a previous correspondence dated 28 June 2018, on 26 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.

11. 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).

12. Subsequently, the Chamber observed 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 considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

13. Furthermore, as a consequence of the aforementioned consideration, the Chamber 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.

14. Having said this, the DRC acknowledged that, in accordance with the loan agreement provided by the Claimant, the Respondent was obliged to remit to the Claimant a monthly salary of EUR 166,000 as well as an advance of payment of EUR 708,000.

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

16. On account of the aforementioned considerations, the members of the Chamber established that the Respondent failed to remit to the Claimant’s remuneration in the total amount of EUR 1,704,000, corresponding to: (i) the advance of payment of EUR 708,000, (ii) his salaries as from February until July 2018, i.e. EUR 166,000 each month for 6 months.

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

18. Consequently, 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 1,704,000.

19. In addition, taking into consideration the Claimant’s claim, the DRC decided to award the Claimant interest at the rate of 5% p.a. on the relevant instalments as of the first day of the month following the month the payment is related to.

20. In continuation, taking into account the consideration under number II./17. 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.

21. The Chamber established that, by virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent. In this context, the DRC highlighted that, on 2 March 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 Single Judge of the Players’ Status Committee.

22. Moreover, the members of the Chamber 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.

23. Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as the considerations under numbers II./21. and II./22. above, the Dispute Resolution Chamber decided to impose a more severe sanction on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of EUR 1,704,000 as well as the aggravating circumstance of a repeated offence, the DRC regarded a fine amounting to CHF 30,000 as appropriate and hence decided to impose said fine on the Respondent.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is 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 1,704,000, plus interest at the rate of 5% p.a. as follows:

a. on the amount of EUR 708,000 as of 1 October 2017 until the date of effective payment;

b. on the amount of EUR 166,000 as of 1 March 2018 until the date of effective payment;

c. on the amount of EUR 166,000 as of 1 April 2018 until the date of effective payment;

d. on the amount of EUR 166,000 as of 1 May 2018 until the date of effective payment;

e. on the amount of EUR 166,000 as of 1 June 2018 until the date of effective payment;

f. on the amount of EUR 166,000 as of 1 July 2018 until the date of effective payment;

g. on the amount of EUR 166,000 as of 1 August 2018 until the date of effective payment.

3. In the event that the amount and interest due to the Claimant 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. 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.

5. The Respondent is ordered to pay a fine in the amount of CHF 30,000. 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