F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 21 April 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 21 April 2017,

by Theo van Seggelen (Netherlands), 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 27 January 2015, Player A (hereinafter: the Claimant) and Club C (hereinafter: the Respondent) signed an employment contract valid from 27 January 2015 until 31 July 2015.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant USD 5,000 per month to be paid on the last day of each month. The contract further provides for a “special bonus 500 USD for the player when assist / goal (sic)”.

3. By correspondence dated 6 August 2015, the Claimant put the Respondent in default of payment of the salaries of June and July 2015 in the total amount of USD 10,000 and bonuses for goals and assists in the amount of USD 4,000, setting the time limit as “immediately” to the club in order for it to remedy the default.

4. On 7 August 2015, the Respondent replied to the default notice stating that it had intended on paying the Claimant the remaining salary, and was performing “due diligence” regarding “bonus, and penalties, damages to housing” which would take a few days.

5. By correspondence dated 28 November 2016, the Claimant, via the Football Association of Country D, put the Respondent in default of payment of the salaries of June and July 2015 in the total amount of USD 10,000 and bonuses for goals and assists in the amount of USD 4,000, setting a ten-day time limit.

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 the total amount of USD 14,000 with USD 10,000 corresponding to the salaries of June and July 2015, and USD 4,000 corresponding to bonuses for six goals and two assists.

7. The Claimant further asks to be awarded interest of 5% p.a. on the following amounts: USD 5,000 as of 1 July 2015, USD 5,000 as of 1 August 2015 and USD 4,000 as of 1 July 2015.

8. 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, 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 November 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (2015 edition; 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 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 (2016 edition) 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 (2016 edition), and considering that the present claim was lodged on 17 November 2016, the 2016 edition of said regulations (hereinafter: the 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 aforementioned facts as well as the arguments and the documentation on file. The DRC judge, however, 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 from 27 January 2015 until 31 July 2015, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, USD 5,000 per month to be paid on the last day of each month. The contract further provides for a “special bonus 500 USD for the player when assist / goal (sic)”.

6. 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 USD 14,000 with USD 10,000 corresponding to the salaries of June and July 2015, and USD 4,000 corresponding to bonuses for six goals and two assists.

7. In this context, the DRC judge took particular note of the fact that, on 6 August 2015 and 28 November 2016, the Claimant put the Respondent in default of payment of the aforementioned amounts, respectively setting a time limit of ten days to cure 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 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.

10. Furthermore, as a consequence of the aforementioned consideration, the DRC judge established 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.

11. In continuation, the DRC judge recalled that in accordance with the employment contract provided by the Claimant, the Respondent was obliged to pay to the Claimant USD 5,000 per month and a bonus of USD 500 “for the player when assist / Goal (sic)”.

12. Furthermore, taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had not fully substantiated his claim pertaining to overdue payables with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, there is no supporting documentation relating to the Claimant’s claim pertaining to match bonuses. Consequently, the DRC judge decided to reject this part of the Claimant’s claim relating to match bonuses in the amount of USD 4,000.

13. On account of the aforementioned considerations and the documentary evidence provided by the Claimant, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 10,000 corresponding to the salaries of June and July 2015.

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 10,000.

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 the total amount of USD 10,000, in casu, from 1 July 2015 on the amount of USD 5,000 and from 1 August 2015 on the amount of USD 5,000 until the date of effective payment.

17. In continuation, taking into account the consideration under point 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. On account of the above 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 10,000, the DRC judge regarded a fine amounting to CHF 1,000 as appropriate and hence decided to impose said fine on the Respondent.

19. In this connection, 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 partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days from the date of notification of this decision, overdue payables in the amount of USD 10,000, 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 USD 5,000 as from 1 July 2015.

b. 5% p.a. on the amount of USD 5,000 as from 1 August 2015.

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. 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. The Respondent is ordered to pay a fine in the amount of CHF 1,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the following bank account:

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