F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 22 November 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 22 November 2017

by Mario Gallavotti (Italy), 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 4 May 2016, the Player of Country B, Player A (hereinafter: Claimant), and the Club of Country D, Club E, signed an employment contract valid as from 6 July 2016 until 5 July 2019.

2. On 4 January 2017, Club E, the Club of Country D, Club C (hereinafter: Respondent) and the Claimant signed a loan agreement according to which the Claimant was loaned by Club E to the Respondent as from the date of signature until 4 July 2017.

3. In accordance with the loan agreement, the Respondent undertook to pay to the Claimant “20000 $ as monthly salary in the first three months of the contract so that the total salaries in the first three months will be 60000 $ and the rest of the total value of the contract is 30000 $ will pay to the player as monthly salaries for the three remaining months of the contract where the salary of each month will be 10000 $”.

4. Following a previous default notice dated 17 May 2017, by correspondence dated 24 August 2017, the Claimant put the Respondent in default of payment of USD 50,000, setting a time limit expiring on 4 September 2017 in order to remedy the default.

5. On 11 August 2017, and completed on 5 September 2017, 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 50,000 corresponding to the salaries of March, April, May and June 2017.

6. The Claimant further asked to be awarded interest of 5% p.a. “counted from the date of each original default (March to June 2017) until final payment”.

7. In reply to the claim, the Respondent held that the parties had reached an amicable solution. However, such settlement was denied by the Claimant.

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 11 August 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 2016) 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 2016), and considering that the present claim was lodged on 11 August 2017, the 2016 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 Club E, the Claimant and the Respondent signed a loan agreement valid as from 4 January 2017 until 4 July 2017, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, “20000 $ as monthly salary in the first three months of the contract so that the total salaries in the first three months will be 60000 $ and the rest of the total value of the contract is 30000 $ […] as monthly salaries for the three remaining months of the contract where the salary of each month will be 10000 $”.

6. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent had overdue payables towards him in the total amount of USD 50,000 corresponding to the salaries of March, April, May and June 2017.

7. In this context, the DRC judge took particular note of the fact that, on 24 August 2017, following a previous default notice dated 17 May 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit expiring on 4 September 2017 in order to remedy 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, answered to the claim by merely stating that the parties had reached an amicable settlement, which was denied by the Claimant.

10. From the Respondent’s answer to the claim, the DRC judge noted that the Claimant’s allegations have remained uncontested by the Respondent.

11. Having said this, the DRC judge acknowledged that, in accordance with the loan agreement provided by the Claimant, which ran as from 4 January 2017 until 4 July 2017, the Respondent was obliged to pay to the Claimant “20000 $ as monthly salary in the first three months of the contract so that the total salaries in the first three months will be 60000 $ and the rest of the total value of the contract is 30000 $ […] as monthly salaries for the three remaining months of the contract where the salary of each month will be 10000 $”.

12. 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 50,000 corresponding to the salaries of March, April, May and June 2017.

13. 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.

14. 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 50,000.

15. In addition, 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 USD 50,000 as follows:

i. on the amount of USD 20,000 as from 1 April 2017 until the date of effective payment;

ii. on the amount of USD 10,000 as from 1 May 2017 until the date of effective payment;

iii. on the amount of USD 10,000 as from 1 June 2017 until the date of effective payment;

iv. on the amount of USD 10,000 as from 1 July 2017 until the date of effective payment.

16. In continuation, taking into account the consideration under number II./13. 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.

17. 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.

18. 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 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 USD 50,000, plus interest at the rate of 5% p.a. as follows:

i. on the amount of USD 20,000 as from 1 April 2017 until the date of effective payment;

ii. on the amount of USD 10,000 as from 1 May 2017 until the date of effective payment;

iii. on the amount of USD 10,000 as from 1 June 2017 until the date of effective payment;

iv. on the amount of USD 10,000 as from 1 July 2017 until the date of effective payment.

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. 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