F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 12 December 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 12 December 2018,

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 22 February 2017, the Player of Country B, Player A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent) signed an employment contract valid as from the date of signature until 1 December 2017.

2. In accordance with art. 2.1 of the employment contract, the Respondent undertook to pay to the Claimant a monthly salary of 30,000,000 as well as for “travel on the route Capital E – Capital F 2 times during the football season at least 950 USD for one trip”. The same article refers to “the [Respondent’s] bonus system on the proposal of the heads of the [Respondent]”.

3. On 24 November 2017, the Respondent issued a “letter of guarantee” by means of which it guaranteed that it would pay to the Claimant outstanding wages and bonuses due until 1 December 2017 in the amount of 139,250,000 until 28 February 2018.

4. By correspondence dated 1 June 2018, the Claimant put the Respondent in default of payment of 139,250,000 setting a time limit expiring on 1 July 2018 in order to remedy the default. Furthermore, with another correspondence, also dated 1 June 2018, the Claimant put the Respondent in default of payment of USD 1,900, setting a time limit expiring on 1 July 2018 in order to remedy the default.

5. On 20 July 2018, completed on 20 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 139,250,000 in accordance with the letter of guarantee of 24 November 2017 as well as the amount of USD 1,900 “as it is stipulated in p.2.1 of the contract … the club undertakes to pay for the travel on the route Capital E – Capital F 2 times during the football season at least 950 USD for one trip”.

6. The Claimant further asked to be awarded interest of 5% p.a. “from the amount of each due payment since the moment when the above payments became outstanding”, and that the Respondent be ordered to pay legal and/or procedural costs “in this case but not less than USD 3,000”.

7. In reply to the claim, the Respondent held that it had paid to the Claimant 55,000,000 on 26 December 2017, 30,000,000 on 30 March 2018 and 16,250,000 on 2 April 2018 out of its debt of 139,250,000 as at 24 November 2017. Furthermore, the Respondent guaranteed full payment of the remaining 38,000,000 by 29 October 2018.

8. On 2 November 2018, in his replica, the Claimant informed FIFA that “at present” the amounts of 38,000,000 “plus interest” as well as USD 1,900 “plus interest” are still outstanding.

9. In spite of having been invited to present its duplica, no duplica was received from the Respondent.

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 20 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 20 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 on 22 February 2017 valid as from the date of signature until 1 December 2017.

6. In continuation, the DRC judge recalled that, on 24 November 2017, the Respondent issued a “letter of guarantee”. The DRC judge highlighted that, in accordance with the “letter of guarantee”, the Respondent undertook to pay to the Claimant outstanding wages and bonuses in the amount of 139,250,000 by 28 February 2018. In addition, in accordance with the employment contract, the Respondent undertook to pay to the Claimant “travel on the route Capital E – Capital F 2 times during the football season at least 950 USD for one trip”.

7. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the amount of 139,250,000 in accordance with the “letter of guarantee” of 24 November 2017 and in the amount of USD 1,900, corresponding to travel costs as stipulated in the employment contract.

8. In this context, the DRC judge took particular note of the fact that the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit expiring on 1 July 2018 in order to remedy the default.

9. 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).

10. Subsequently, the DRC judge took into account that the Respondent, for its part, held that it had paid the Claimant a total amount of 101,250,000 and that, as a consequence, only 38,000,000 remained outstanding. Furthermore, the DRC judge noted that the Respondent indicated that it would pay this amount to the Claimant by 29 October 2018. In this respect, the DRC judge further noted that the Respondent had not commented on the Claimant’s claim pertaining to USD 1,900 as regards the contractual travel costs. In addition, considering the wording of the “letter of guarantee”, which specifically refers to wages and bonus payments, the DRC judge reasoned that the contractual travel costs are not included in the 139,250,000 set out in the “letter of guarantee”.

11. Similarly, the DRC judge took into account that, on 2 November 2018, the Claimant held that the 38,000,000 indicated by the Respondent in its reply, as well as the USD 1,900 corresponding to the travel costs, remained outstanding.

12. In light of the above, given that the Respondent claimed that out of the 139,250,000 as at 24 November 2017 only 38,000,000 remained outstanding and that this was acknowledged by the Claimant in his replica, the DRC judge concluded that the amount of 38,000,000 on the basis of the “letter of guarantee” remained outstanding.

13. In addition, the DRC judge recalled that the Respondent had not provided any argumentation regarding the alleged non-payment of USD 1,900, corresponding to contractual travel costs.

14. In this context, the DRC judge further took into account that the claimed amount of travel costs was duly specified in the contract and that the “letter of guarantee” specifically referred to wages and bonuses only (cf. point II./10. above). Consequently, the DRC judge decided that the Claimant’s claim pertaining to travel costs totalling USD 1,900 can be upheld.

15. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the amounts of 38,000,000 and USD 1,900.

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 amounts of 38,000,000 and USD 1,900.

18. Moreover, taking into account the Claimant’s request, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of 38,000,000 as from the date following the time limit stipulated in the “letter of guarantee” as well as interest of 5% p.a. on the amount of USD 1,900 as from the date following the date of expiry of the employment contract.

19. In addition, as regards the claimed legal and/or procedural costs, the DRC judge referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC judge decided to reject the Claimant’s request relating to legal expenses.

20. Finally, 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./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.

22. The DRC judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent duly replied to the claim of the Claimant and in the absence of the circumstance of repeated offence, the DRC judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

23. In this connection, the DRC judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to a 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 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 amounts of 38,000,000 and USD 1,900, plus interest at the rate of 5% p.a. as follows:

a. 5% p.a. on the amount of 38,000,000 as from 1 March 2018;

b. 5% p.a. on the amount of USD 1,900 as from 2 December 2017.

3. In the event that the amounts plus interest due to the Claimant are 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. 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. A warning is imposed on the Respondent.

*****

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