F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 4 September 2018

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 4 September 2018,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), member

Jon Newman (USA), member

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 an unspecified date in July 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 15 July 2016 until 31 May 2018.

2. On 24 February 2017, the Claimant and the Respondent signed an agreement, by means of which the employment contract was terminated and the Respondent undertook to pay to the Claimant inter alia the amount of EUR 355,000 as follows:

a. EUR 25,000 “on or before 25 March 2017”;

b. EUR 330,000 “on or before 1 August 2017”.

3. By correspondence dated 7 June 2018, the Claimant put the Respondent in default of payment of EUR 355,000 setting a 14 days’ time limit in order to remedy the default.

4. By correspondence dated 26 June 2018, the Claimant once again put the Respondent in default of payment of EUR 355,000 setting a 7 days’ time limit in order to remedy the default.

5. On 24 July 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 EUR 355,000.

6. The Claimant further asked to be awarded interest “thereon at 5% or at the legal rate from 1 August 2017”.

7. The Respondent, for its part, asked for a 36 months’ payment plan in order to settle its debt towards the Claimant due to its alleged difficult financial situation.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 24 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 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) it 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 Chamber 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 24 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 and the applicable regulations having been established, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the DRC emphasised 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 the Claimant and the Respondent signed an employment contract in July 2016 valid as from 15 July 2016 until 31 May 2018.

6. In continuation, the Chamber recalled that on 24 February 2017, the Claimant and the Respondent signed an agreement by means of which the said employment contract was terminated.

7. The DRC highlighted that, in accordance with the said termination agreement, the Respondent undertook to pay to the Claimant EUR 355,000 in two instalments of EUR 25,000 and EUR 330,000 on 25 March 2017 and on 1 August 2017 the latest, respectively.

8. 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 EUR 355,000 corresponding to the relevant amounts as stipulated in the aforementioned termination agreement.

9. In this context, the DRC took particular note of the fact that, on 7 June 2018, the Claimant put the Respondent in default of payment of the amount of EUR 355,000, setting a time limit expiring on 21 June 2018 in order to remedy the default.

10. Moreover, the Chamber recalled that on 26 June 2018, the Claimant once again put the Respondent in default of payment of the same amounts, setting a 7 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 Chamber took into account that the Respondent, for its part, acknowledged its debt towards to the Claimant, but that it wished to pay the amount over a 36 months’ period of time in light of its apparent difficult financial situation.

13. In this regard, the DRC considered that the position of 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.

14. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 355,000.

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

16. 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 EUR 355,000.

17. In addition, taking into account the Claimant’s request as well as its constant practice, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 355,000 as follows:

a. 5% p.a. on the amount of EUR 25,000 as from 1 August 2017;

b. 5% p.a. on the amount of EUR 330,000 as from 2 August 2017.

18. In continuation, taking into account the consideration under number II./15. above, the Chamber 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. The DRC further established that by virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent.

19. Having said that, to start with, the DRC took note that the Respondent is involved in one other employment-related dispute in connection with overdue payables, which, in addition to the present matter, has been submitted to this Chamber today and in which sanctions have been imposed on the Respondent.

20. Furthermore, the DRC highlighted that, in the recent past, the Respondent had been found to have delayed a due payment for more than 30 days without a prima facie contractual basis on various occasions, as a result of which sanctions had been imposed on the Respondent by the relevant decision making bodies.

21. Along this line, the Chamber stressed that, on 20 September 2017, the Respondent had last been found, by the DRC, to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which, in the event that the Respondent would not pay the amount due within the time limit set in said decision, a ban from registering any new players, either nationally or internationally, for the next two entire registration periods following the notification of the mentioned decision would become effective on the Respondent. The Chamber noted that such ban became effective as of the registration period in Country D in January 2018.

22. In addition, the members of the Chamber wished to underline and took into account that the Respondent had been found by the Dispute Resolution Chamber and/or the DRC judge responsible for not complying with its financial obligations towards players on various other occasions in the recent past.

23. In addition, the Chamber took into consideration that 2 years or more ago the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis.

24. Bearing in mind the above, the Chamber 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 a more severe penalty.

25. On account of the above considerations and 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.

26. Furthermore, the DRC decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) and par. 5 of the Regulations. Taking into consideration the specificities of the case at hand and the amount due of EUR 355,000, the DRC regarded a fine amounting to CHF 20,000 as appropriate and hence decided to impose said fine on the Respondent.

III. Decision of the Dispute Resolution Chamber

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 amount of EUR 355,000, 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 EUR 25,000 as from 1 August 2017;

b. 5% p.a. on the amount of EUR 330,000 as from 2 August 2017.

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. Any further claim of 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 of every payment received.

6. 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.

7. The Respondent is ordered to pay a fine in the amount of CHF 20,000. 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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives