F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 27 September 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 27 September 2018,

by Philippe Diallo (France), 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 19 January 2016, 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 19 January 2016 until 30 June 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia USD 6,000 per month as “from the end of February 2016 until End of June 2016”.

3. By correspondence dated 29 April 2018, the Claimant put the Respondent in default of payment of USD 24,000 corresponding to 5 monthly salaries setting a 10 days’ time limit in order to remedy the default.

4. On 8 May 2018, and completed on 6 June 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 USD 24,000. The Claimant clarified that this amount corresponds to the salaries of March, April, May and June 2016, due on 31 March 2016, 30 April 2016, 31 May 2016 and 30 June 2016 respectively according to the Claimant, in the amount of USD 6,000 each.

5. The Claimant further asks to be awarded “the legal interests of each monthly salary from the due date of each payment”.

6. In spite of having been invited to do so, the Respondent has not replied to the claim.

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 8 May 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. Before entering into the substance of the present matter and while exercising his duty to analyse ex officio the admissibility of every claim lodged in front of him, the DRC Judge noted that the question of prescription must be discussed in the context of the present claim.

4. In this regard, the DRC judge referred to art. 25 par. 5 of the FIFA Regulations (edition2018 ), according to which, inter alia, the DRC judge shall not hear any case subject to said Regulations if more than two years have elapsed since the event giving rise to the dispute. In this respect, the Chamber noted that the present claim was lodged in front of the DRC on 8 May 2018. Therefore, in line with art. 25 par. 5 of the Regulations, any amounts fallen due before 8 May 2016 are affected by prescription. The DRC judge noted that the Claimant, inter alia, requests the payment of the salaries of March, April, May and June all 2016, due, according to the Claimant himself, on 31 March 2016, 30 April 2016, 31 May 2016 and 30 June 2016, respectively, which allegedly were not paid by the Respondent. Bearing in mind the foregoing, the DRC judge concluded that the Claimant’s request for the payment of the salary of March 2016, due on 31 March 2016 and the salary of April, 2016, due on 30 April 2016, is time-barred by the statute of limitations in application of art. 25 par. 5 of the Regulations Consequently, this specific part of the Claimant’s claim is considered inadmissible.

5. 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 8 May 2018, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

6. 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.

7. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 19 January 2016 until 30 June 2016, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, USD 6,000 per month as from end of February 2016 until end of June 2016.

8. As established before, the DRC Judge duly took note that the Claimant lodged a claim against the Respondent in front of FIFA on 8 May 2018, maintaining that the Respondent has overdue payables towards him in the total amount of USD 24,000 corresponding to the salaries of March 2016 to June 2016 included.

9. In this context, the DRC judge took particular note of the fact that, on 29 April 2018, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit of 10 days in order to remedy the default.

10. 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).

11. Subsequently, the DRC judge 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 judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

12. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.

13. Having said this, the DRC judge acknowledged that, in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant USD 6,000 per month as “from the end of February 2016 until End of June 2016” as per the contract.

14. In this context, the DRC judge recalled that as established in the considerations under number II./4. above any amounts fallen due before 8 May 2016 are a barred by the statute of limitations in application of art. 25 par. 5 of the Regulations.

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

16. 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 12,000 corresponding to the monthly salaries of May and June 2016, due on 31 May 2016, and 30 June 2016, respectively.

17. 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.

18. 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 12,000.

19. 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 the amount of USD 6,000 as of 1 June 2016 until the date of effective payment and on the amount of USD 6,000 as of 1 July 2016 until the date of effective payment.

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

21. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, and bearing in mind that the Respondent did not reply to the claim of the Claimant, the DRC judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of USD 12,000, the DRC judge regarded a fine amounting to CHF 2,000 as appropriate and hence decided to impose said fine on the Respondent.

22. 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 insofar as it is admissible.

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 12,000, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

 5% p.a. as from 1 June 2016 on the amount of USD 6,000;

 5% p.a. as from 1 July 2016 on the amount of USD 6,000.

3. In the event that the amount 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 judge of every payment received.

5. The Respondent is ordered to pay a fine in the amount of CHF 2,000. 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 DRC judge:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives