F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 7 June 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 7 June 2018,

in the following composition:

Geoff Thompson (England), Chairman

Roy Vermeer (The Netherlands), member

Jon Newman (USA), member

Wouter Lambrecht (Belgium), member

Pavel Pivovarov (Russia), member

on the claim presented by the player,

Player A, from country A

as Claimant

against the club,

Club X, from country X

as Respondent

regarding an employment-related dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 8 July 2017, the player from country A, Player A (hereinafter: the Claimant), and the club from country X, Club X (hereinafter: the Respondent), signed an employment contract valid as from the date of signature until 30 November 2017.

2. On the same date, the parties signed the “Appendix n.1” (hereinafter: the appendix) to the employment contract.

3. In accordance with art. 3.1 of the employment contract, the Respondent undertook to pay to the Claimant “a monthly salary [of] 5,100,000 […]”.

4. Furthermore, according to art. 1 of the appendix, the Claimant was entitled, inter alia, to “a) for the win in Championship in home and away matches the sum from 300,000 up to 1,200,000; b) for the draw in Championship in away matches the sum will be paid 50% from the sum of the player of main team […]”.

5. Moreover, according to art. 4 of the appendix, the Claimant was entitled to “2 (two) time in 2017 travel air flight from work place to place of residence and back […]”.

6. By correspondence dated 5 March 2018, the Claimant put the Respondent in default of payment of 17,209,000 setting a time limit of 10 days in order to remedy the default.

7. On 4 April 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 17,209,000, corresponding to: (i) part of his salary of August 2017 600,000); (ii) his salary of September, October and November 2017 (15,300,000); (iii) bonuses “corresponding to two away draws and 2 won games” (900,000); (iv) reimbursement of a flight ticket bought in July 2017 (409,000).

8. The Claimant further asked to be awarded 5% interest p.a. “on the whole sum above, due from the time of the contract breach (August 2017) […]”.

9. In particular, the Claimant argued that he had played for the team in two away draw and two home win games, being consequently entitled to “at least 900,000”. Moreover, the Claimant explained that, in accordance with the appendix, he had to be reimbursed for the round trip flight ticket he purchased.

10. 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: 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 4 April 2018. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is 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 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018), it is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player and a club.

3. Furthermore, the DRC 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 4 April 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 and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasized 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, on 8 July 2017, the Claimant and the Respondent signed an employment contract valid as from the date of signature until 30 November 2017.

6. Furthermore, the members of the Chamber observed that, on the same date, the Claimant and the Respondent signed an appendix to the employment contract.

7. In continuation, the Chamber noted that, in accordance with the employment contract and its appendix, the Respondent undertook to pay to the Claimant a monthly salary of 5,100,000 and bonuses as follows: “a) for the win in Championship in home and away matches the sum from 300,000 up to 1,200,000; b) for the draw in Championship in away matches the sum will be paid 50% from the sum of the player of main team […]”.

8. Furthermore, it was noted that, according to the appendix, the Claimant was entitled to “2 (two) time in 2017 travel air flight from work place to place of residence and back […]”.

9. 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 17,209,000, corresponding to: (i) part of his salary of August 2017 (600,000); (ii) his salary of September, October and November 2017 (15,300,000); (iii) bonuses “corresponding to two away draws and 2 won games” (900,000); (iv) reimbursement of a flight ticket bought in July 2017 (409,000).

10. In this context, the DRC took particular note of the fact that, on 5 March 2018, the Claimant put the Respondent in default of payment of the amount of 17,209,000, setting a 10 days’ time limit 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 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 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 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.

14. Having said this, the DRC acknowledged that, in accordance with the employment contract and its appendix, the Respondent was obliged to pay to the Claimant the amount of 5,100,000 as monthly salary plus bonuses as follows: “a) for the win in Championship in home and away matches the sum from 300,000 up to 1,200,000; b) for the draw in Championship in away matches the sum will be paid 50% from the sum of the player of main team […]”. Furthermore, the DRC observed that, according to the appendix, the Claimant was also entitled to “2 (two) time in 2017 travel air flight from work place to place of residence and back […]”.

15. In relation to the above, the members of the Chamber observed that the appendix does not clearly indicate the Claimant’s entitlement as bonus for a draw in away matches. In this respect, the DRC deemed important to recall art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof and deemed that the Respondent had not presented documentation which would clarify which amount was due to be paid in such occurrence.

16. Taking into account the documentation presented by the Claimant in support of his petition concerning outstanding salaries, bonuses relating to the win in home and away matches and the flight ticket, the Chamber concluded that the Claimant had substantiated this part of his claim pertaining to overdue payables with sufficient documentary evidence.

17. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of 16,909,000, corresponding to: (i) part of the salary of August 2017 (600,000), as well as the salaries for September, October and November 2017 (15,300,000); (ii) 2 bonuses for the win in home and away matches (600,000) and (iii) a round trip flight ticket from from country X to country A and back (409,000).

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

19. Consequently, the DRC 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 16,909,000.

20. In addition, taking into consideration the Claimant’s request and the fact that the employment contract and the appendix lack an indication of a clear due date for salary payment and bonuses, 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 600,000 as from 1 September 2017 until the date of effective payment;

- 5% p.a. on the amount of 5,100,000 as from 1 October 2017 until the date of effective payment;

- 5% p.a. on the amount of 5,100,000 as from 1 November 2017 until the date of effective payment;

- 5% p.a. on the amount of 5,100,000 as from 1 December 2017 until the date of effective payment;

- 5% p.a. on the amount of 300,000 as from 30 September 2017 until the date of effective payment;

- 5% p.a. on the amount of 300,000 as from 31 October 2017 until the date of effective payment;

- 5% p.a. on the amount of 409,000 as from 1 August 2017 until the date of effective payment.

21. In continuation, taking into account the consideration under number II./18. 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 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 May 2017, on 6 September 2017 (for two separate offences), on 6 December 2017, on 18 March 2018 the Respondent had already been found by the DRC and the DRC Judge to have delayed a due payment for more than 30 days without a prima facie contractual basis. In particular, the members of the Chamber noted that, on 18 March 2018, the DRC decided that, should the Respondent fail to pay the amount awarded to the creditor within 30 days of notification of the relevant decision, a ban from registering any new players, either nationally or internationally, would become effective on the Respondent for the next two entire registration periods following the notification of said decision.

23. The Chamber further took into account that, since the Respondent did not comply with its obligation to pay the amount awarded to the creditor in accordance with the aforementioned decision passed by the DRC on 18 March 2018, said ban from registering any new players, either nationally or internationally, during two entire and consecutive registration periods will indeed be effective as from the country X registration period starting in July 2018.

24. Having said that, the Chamber established that, in the present matter, the Respondent is found to have delayed a due payment for more than 30 days without a prima facie contractual basis for the 6th time.

25. Along these lines, 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 more severe penalty.

26. Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis paras 7 and 8 of the Regulations, the DRC decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for one entire registration period. The execution of this registration ban is suspended during a probationary period of one year following the notification of the present decision. If the Respondent commits another infringement during the one year probationary period, the suspension is automatically revoked and the registration ban executed.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is partially accepted.

2. The Respondent, Club X, has to pay overdue payables in the amount of 16,909,000 to the Claimant within 30 days as from the date of notification of this decision.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, interest of 5% p.a. as follows:

-5% p.a. on the amount of 600,000 as from 1 September 2017 until the date of effective payment;

- 5% p.a. on the amount of 5,100,000 as from 1 October 2017 until the date of effective payment;

- 5% p.a. on the amount of 5,100,000 as from 1 November 2017 until the date of effective payment;

- 5% p.a. on the amount of 5,100,000 as from 1 December 2017 until the date of effective payment;

- 5% p.a. on the amount of 300,000 as from 30 September 2017 until the date of effective payment;

- 5% p.a. on the amount of 300,000 as from 31 October 2017 until the date of effective payment;

- 5% p.a. on the amount of 409,000 as from 1 August 2017 until the date of effective payment.

4. In the event that the amount and interest due to the Claimant are not paid by the Respondent within the stated time limits, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

5. Any further claim of the Claimant is rejected.

6. 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.

7. The Respondent shall be banned from registering any new players, either nationally or internationally, for one entire registration period. The execution of this registration ban is suspended during a probation period of one year following the notification of the present decision. If the Respondent commits another infringement during the probationary period, the suspension is automatically revoked and the registration ban executed.

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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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives