F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 14 November 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 14 November 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 1 June 2016, the Claimant and the Respondent signed an employment contract valid as from 1 June 2016 until 30 June 2018.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant a monthly salary of 5,500 in the currency of Country D.

3. On an unspecified date, according to the Claimant ‘after the expiry of the contract’, the Respondent issued a document referred to as ‘debt acknowledgement’, confirming the ‘outstanding balance as at June 2018’ in the amount of 32,900 in the currency of Country D towards ‘Player A’.

4. Furthermore, according to the Claimant, the amount of 32,900 in the currency of Country D established in the debt acknowledgement consisted of the outstanding salary for January 2018 in the amount of 5,400 in the currency of Country D, as well as 5 outstanding salaries for the period between February and June 2018 in the amount of 5,500 in the currency of Country D each.

5. By correspondence dated 8 August 2018, the Claimant put the Respondent in default of payment of the amount of 32,900 in the currency of Country D, setting a 14 days’ time limit in order to remedy the default.

6. 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 32,900 in the currency of Country D.

7. The Claimant further asks to be awarded 5% interest p.a. as of 1 February 2018 on the amount of 5,400 in the currency of Country D, 5% interest p.a. as of 1 March 2018 on the amount of 5,500 in the currency of Country D, 5% interest p.a. as of 1 April 2018 on the amount of 5,500 in the currency of Country D, 5% interest p.a. as of 1 May 2018 on the amount of 5,500 in the currency of Country D, 5% interest p.a. as of 1 June 2018 on the amount of 5,500 in the currency of Country D and 5% interest p.a. as of 1 July 2018 on the amount of 5,500 in the currency of Country D.

8. In reaction to being informed about the claim, the Respondent only stated that it would try to find ‘an amicable solution with the player’. No further comments as to the substance were 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 27 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 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 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 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 June 2016 until 30 June 2018, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of 5,500 in the currency of Country D.

6. Furthermore, the DRC judge noted that the Respondent, on an unspecified date, issued a document referred to as ‘debt acknowledgement’, confirming an outstanding balance in the amount of 32,900 in the currency of Country D towards the Claimant.

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 32,900 in the currency of Country D, corresponding to the outstanding salary for January 2018 in the amount of 5,400 in the currency of Country D, as well as 5 outstanding salaries for the period between February and June 2018 in the amount of 5,500 in the currency of Country D each.

8. In this context, the DRC judge took particular note of the fact that, on 8 August 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 22 August 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 and in reply to being informed about the claim of the Claimant, held that that it would try to find ‘an amicable solution with the player’. Further, the Respondent failed to submit any argumentation as to the substance of the matter at hand.

11. In this regard, the DRC judge considered that the circumstances raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

12. Consequently, the DRC judge decided to reject the argumentation put forward by the Respondent in its defence.

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 32,900 in the currency of Country D, corresponding to the outstanding salary for January 2018 in the amount of 5,400 in the currency of Country D, as well as 5 outstanding salaries for the period between February and June 2018 in the amount of 5,500 in the currency of Country D each.

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 32,900 in the currency of Country D.

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 each of the relevant payment(s) as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

17. In continuation, taking into account the consideration under number II./14. 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.

18. 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 submitted a reply 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.

19. 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 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 32,900 in the currency of Country D, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

a. 5% p.a. on the amount of 5,400 in the currency of Country D as from 1 February 2018;

b. 5% p.a. on the amount of 5,500 in the currency of Country D as from 1 March 2018;

c. 5% p.a. on the amount of 5,500 in the currency of Country D as from 1 April 2018;

d. 5% p.a. on the amount of 5,500 in the currency of Country D as from 1 May 2018;

e. 5% p.a. on the amount of 5,500 in the currency of Country D as from 1 June 2018;

f. 5% p.a. on the amount of 5,500 in the currency of Country D as from 1 July 2018.

3. In the event that the amount due to the Claimant, plus interest, 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 judge of every payment received.

5. 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