F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 11 April 2019

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 11 April 2019,

by Jon Newman (USA), 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 1 November 2017, 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 15 January 2018 until 15 December 2018.

2. According the contract, the Claimant was entitled to a monthly salary in the amount of USD 6,000, “payable on or before the 10“, day of each calendar month.”

3. Moreover, in accordance with clause 6 of the contract, the Claimant was entitled to “a) 2 (two) round-trip economy class air ticket, from his country of residence to Country D and back to his country of residence”

4. On 4 February 2019, the Claimant put the Respondent in default of payment for the total amount of USD 44,299.10, setting a 10 days’ time limit in order to remedy the default.

5. On 17 January 2019, 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 44,299.10, plus 5% interest p.a., detailed as follows:

- USD 3,000, corresponding to the month of January 2018 (Half Salary);

- USD 6,000, corresponding to the month of June 2018;

- USD 6,000, corresponding to the month of July 2018;

- USD 6,000, corresponding to the month of August 2018;

- USD 6,000, corresponding to the month of September 2018;

- USD 6,000, corresponding to the month of October 2018;

- USD 6,000, corresponding to the month of November 2018;

- USD 3,000, corresponding to the month of December 2018 (Half Salary);

- USD 2,299.10, corresponding to flight tickets.

6. In its reply to the claim, the Respondent stated that “[it] would like to acknowledge that the claim by [the Claimant] is payable by [it].” Within this context, the Claimant explained that it is in “a very bad financial situation and [is] unable to pay the total amount outright”, and offered to settle its debt in several instalments.

7. In his replica, the Claimant insisted in his claim and considered that it cannot be held liable for the Respondent’s lack of financial planning, and underlined that both parties agreed on the existence of a debt.

8. As final comments, the Respondent highlighted its “bad financial situation” and proposed to pay the total debt of USD 44,299.10, in 10 instalments of USD 4,429.91 each, from June 2019 until March 2020.

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 17 January 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: the 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 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 analyzed 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 June 2018), and considering that the present claim was lodged on 17 January 2019, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance with a value of less than CHF 100,000.

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 emphasized 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, on 1 November 2017, the Claimant and the Respondent signed an employment contract, valid as from 15 January 2018 until 15 December 2018, by means of which the Respondent acknowledged that it had an obligation to pay the Claimant a monthly salary in the amount of USD 6,000, “on or before the 10“, day of each calendar month.”, as well as flight tickets in accordance with clause 6 of the contract (cf. point I. 3 above).

6. In continuation, the DRC judge duly noted that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him, corresponding to the total amount of EUR 44,299.10, corresponding to one partial salary in January 2018, his entire salaries from June 2018 until November 2018, as well as to a partial salary in December 2018, and also including the amount of USD 2,299.10, corresponding to flight tickets.

7. In this context, the DRC judge took particular note of the fact that, on 4 February 2019, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 10 days’ time limit 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 observed that the Respondent acknowledged that it had a debt towards the Claimant as requested in his statement of claim, i.e. USD 44,299.10, but that it requested to settle it in several instalments of USD 4,429.91 each, from June 2019 until March 2020.

10. In this regard, the DRC judge further noted that the Claimant insisted in his claim and considered that it cannot be held liable for the Respondent’s lack of financial planning, and underlined that both parties agreed on the existence of a debt.

11. In this respect, the DRC judge concurred that, in accordance with the principle of pacta sunt servanda, the parties are expected to comply with their obligations as contractually stipulated.

12. On account of the documentation on file, the DRC judge concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence and that the existence of the debt was acknowledged by the Respondent.

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 USD 44,299.10, as contractually agreed between the parties.

14. 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.

15. 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 USD 44,299.10.

16. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on said amount as from the day following the respective due dates of each instalment until the date of effective payment.

17. In continuation, taking into account the previous considerations, 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.

18. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent replied to the claim of the Claimant, the DRC judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations. Taking into consideration that this constitutes its first offence in overdue payables, the DRC judge regarded the imposition of a warning as appropriate.

19. In this respect, the DRC judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

III. Decision of the DRC judge

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 USD 44,299.10, plus 5% interest p.a., calculated as follows:

- 5% p.a. over the amount of USD 3,000 as from 11 February 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 6,000 as from 11 July 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 6,000 as from 11 August 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 6,000 as from 11 September 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 6,000 as from 11 October 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 6,000 as from 11 November 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 6,000 as from 11 December 2018 until the date of effective payment;

- 5% p.a. over the amount of USD 3,000 as from 11 January 2019 until the date of effective payment.

3. In the event that the aforementioned amount plus interest due to the Claimant is not paid by the Respondent within the stated time limit, the present matter shall be submitted 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 are to be made and to notify the DRC judge of every payment received.

5. A warning is imposed on the Respondent.

*****

Note relating to the motivated decision (legal remedy):

According to art. 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 (CAS)

Avenue de Beaumont 2

CH-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:

Emilio García Silvero

Chief Legal Officer