F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 17 May 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 17 May 2018,

in the following composition:

Geoff Thompson (England), Chairman

John Bramhall (England), member

Stijn Boeykens (Belgium), member

Philippe Diallo (France), member

Jérôme Perlemuter (France), 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 day in September 2015, 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 10 September 2015 until 10 June 2016 (hereinafter: contract).

2. In accordance with the contract, the Respondent undertook to pay, inter alia, the total amount of EUR 1,000,000 to the Claimant in various instalments during the validity of the contract.

3. The contract specifies that all payments are net of Country D taxes and shall be made in the currency of Country D at the exchange rate of 1 EUR / 4.10 currency of Country D.

4. Art. 10 of the contract states that “All notifications and correspondence pertaining to this contract shall be delivered by fax or by hand or registered mail or by e-mail to both parties with acknowledgement of receipt or to the Address stated above in this contract. Each party shall undertake to notify the other party of any change in his address.”

5. Following previous default notices dated 19 September 2017 and 12 October 2017, on 19 October 2017, the Claimant put the Respondent in default of payment of the amount of EUR 181,755.12 setting a 10 days’ time limit in order to remedy the default.

6. On 26 October 2017, completed on 30 October 2017, the Claimant lodged a claim against the Respondent asking that the Respondent be ordered to pay to him overdue payables in the initial amount of EUR 181,755.12. On 19 February 2018, the Claimant amended his claim asking to be awarded the sum of 755,186 in the currency of Country D.

7. The Claimant further asked to be awarded interest of 5% p.a. as of the respective due dates or as from the expiry date of the contract.

8. In addition, the Claimant asked that the Respondent be ordered to pay legal costs of EUR 5,000.

9. The Claimant explained that during the course of the employment relationship, the Respondent failed to pay several amounts and always paid different amounts at different times.

10. In reply to the claim, the Respondent asserted that it paid the total amount of EUR 898,780.50 to the Claimant and that, thus, the amount of EUR 101,219.50 remains outstanding, which it would pay “as soon as possible”.

11. The Respondent highlighted that in light of its financial difficulties the parties had verbally agreed to postpone the payment of the Claimant’s receivables, which, according to the Respondent, can be proven by the fact that the Claimant never complained about such postponements, not even after the end of the employment duration until he lodged his claim.

12. The Respondent further held that in spite of its acknowledgement that it owes the amount of EUR 101,219.50 to the Claimant, this amount cannot be considered overdue payables in accordance with art. 12bis of the FIFA Regulations.

13. In this regard, the Respondent deemed that there has been no delay of more than 30 days since following the alleged rescheduling of the contractual due dates the parties had not set a specific deadline in which the remaining payments had to be made.

14. The Respondent held that the Claimant has not put it in default in writing alleging that it never received the default notices presented by the Claimant with his statement of claim. In this respect, the Respondent refers to art. 10 of the contract and held that in order to consider that the Respondent was actually put in default in writing notifications should have been performed in any of the manners foreseen in said art. 10. The Respondent pointed out that no fax report or acknowledgement of receipt relating to the alleged default notices was presented.

15. In his replica, the Claimant amended the amount he claimed maintaining that the documents presented by the Respondent do not constitute proof of payment of EUR 898,780.50, since it cannot be established whether any of the amounts have actually been paid to him. In support of his position, the Claimant presented an account history of the bank account to which the Respondent made payments to him under the contract relating to the period between 14 October 2015 and 29 August 2016, from which it can allegedly be noted that, excluding bonus payments, the Respondent paid the total amount of 3,344,814 in the currency of Country D or EUR 815,808.29. Therefore, the Claimant asked that the amount of 755,186 in the currency of Country D be awarded to him.

16. In addition, the Claimant contested that he ever agreed, verbally or in writing, to reschedule the financial terms of the contract.

17. Furthermore, the Claimant held that his default notices were submitted to the Respondent via airmail, email as well as by fax and he presented a copy of 2 emails and of 2 fax transmission reports, dated 12 and 19 October 2017, sent to the Respondent’s email address and fax number, respectively, that are indicated in the contract.

18. In addition, the Claimant asked that the documents presented by the Respondent on 29 January 2018 as 2 pages of “Exhibit No. 7” be disregarded, since they allegedly were presented outside of the time limit set by FIFA.

19. In its duplica, the Respondent fully adhered to its position disagreeing with the Claimant’s allegations.

20. As regards the bank account document presented by the Claimant, the Respondent stated that the Claimant may have accidentally missed some of the payments effectively made by the Respondent. The Respondent insists that the documents it presented clearly demonstrate that it paid the amount of EUR 898,780.50 to the Claimant.

21. In addition, the Respondent reiterated that, in spite of the fax transmission report presented by the Claimant, it did not receive the relevant default notices.

II. Considerations of the Dispute Resolution Chamber

1. First, 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 26 October 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2018) the Dispute Resolution Chamber 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. In continuation, 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 26 October 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 Chamber 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 Chamber 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, in September 2015, the Claimant and the Respondent signed an employment contract valid as from 10 September 2015 until 10 June 2016, in accordance with which the Claimant was entitled to receive, inter alia, the total amount of EUR 1,000,000 or 4,100,000 in the currency of Country D as per the contractual exchange rate, i.e. 1 EUR / 4.10 currency of Country D.

6. The Chamber noted that the Claimant maintains that the Respondent has overdue payables towards him in the amount of 755,186 in the currency of Country D on the basis of the contract, after initially having claimed payment of the amount of EUR 181,755.12. Therefore, the Claimant asked to be awarded the amount of 755,186 in the currency of Country D as well as 5% interest p.a. on said amount as from the respective due dates or the date of expiry of the contract. The Claimant further asked to be awarded EUR 5,000 to cover his legal costs.

7. In this context, the DRC took particular note of the fact that the contract expired on 10 June 2016 and that with his correspondence dated 19 October 2017, the Claimant put the Respondent in default of payment of the amount of EUR 181,755.12 setting a 10 days’ time limit to remedy default.

8. At this point, the Chamber recalled that the Respondent alleged that it had not received any default notice from the Claimant. However, the members of the Chamber noted that the Claimant had presented a copy of a transmission report demonstrating the successful transmission of said default notice dated 19 October 2017 via fax to the Respondent, using the Respondent’s fax number indicated in the contract. Consequently, the Chamber rejected the Respondent’s argumentation in this regard.

9. Therefore, 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).

10. In continuation, the members of the Chamber took into account that the Respondent acknowledged that it owes the amount of EUR 101,219.50 to the Claimant maintaining that it paid the amount of EUR 898,780.50 to him, which amounts correspond to 415,000 in the currency of Country D and 3,685,000 in the currency of Country D, respectively.

11. The Claimant, however, maintained that he received the amount of 3,344,814 in the currency of Country D out of the contractual total sum of 4,100,000 in the currency of Country D from the Respondent only.

12. In light of the diverging position of the parties in respect of the amounts allegedly paid and received, the Chamber proceeded with a detailed analysis of the documents presented by the parties in support of their respective positions.

13. Before doing so, however, the members of the Chamber reverted to the Claimant’s request that the documents presented by the Respondent on 29 January 2018 be disregarded (cf. point I./18. above). The relevant document consists of a written declaration issued by the Respondent’s bank on 15 January 2018 stating various money transfers from the Respondent’s to the Claimant’s account between 14 October 2015 and 2 August 2016. The Chamber noted that said document was in fact submitted within the deadline set by FIFA in order for the Respondent to present a legible copy of the exhibit 7 it had previously presented along with its reply to the claim on 30 November 2017. However, given the date of issuance of said bank statement the members of the Chamber had strong doubts as to whether such document was in fact the illegible exhibit the Respondent presented on 30 November 2017. For this reason, the Chamber agreed that such bank statement shall not be taken into account in its analysis.

14. Having said that, the Chamber took into account that the payments indicated in the documents presented by the Respondent in fact total 3,544,814 in the currency of Country D.

15. With this in mind, the Chamber found that the difference between the amount acknowledged as received by the Claimant and the amounts indicated in the documents presented by the Respondent in support of its position appears to be a payment of 200,000 in the currency of Country D, which the Respondent maintained having made to the Claimant on 1 September 2016 by means of a cheque, a copy of which the Respondent submitted with its reply to the claim along with a copy of a cheque deposit voucher. In this respect, the members of the Chamber noted that the Claimant had merely stated that the documents presented by the Respondent do not prove that the amount was actually paid. However, the Chamber took into account that the bank documents presented by the Claimant in support of his position, which, inter alia, refer to cheque deposit statements, are related to a period of time ending on 29 August 2016.

16. On account of the above considerations, the Chamber concurred that the Respondent paid the total amount of 3,544,814 in the currency of Country D to the Claimant, thus including the aforementioned 200,000 in the currency of Country D on 1 September 2016. Consequently, the Chamber established that the Respondent failed to pay the amount of 555,186 in the currency of Country D to the Claimant.

17. In continuation, the Chamber took into account that the Respondent had presented no documentation in support of its allegation that the Claimant had verbally agreed to postpone the payment of the outstanding amount, which allegation was contested by the Claimant. In this context, the Chamber referred to the general principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules. Consequently, bearing in mind that the outstanding amount was not further specified by the Claimant, the Chamber agreed that the amount of 555,186 in the currency of Country D had fallen due with the expiry of the contract on 10 June 2016.

18. Therefore, the Chamber rejected the argumentation presented by the Respondent in respect of overdue payables in the sense of art. 12bis of the Regulations and established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

19. On account of the above, 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 amount of 555,186 in the currency of Country D.

20. In addition, taking into consideration the Claimant’s request as well as the Chamber’s constant jurisprudence and point II./17. above, the Chamber decided to award the Claimant interest at the rate of 5% p.a. on the amount of 555,186 in the currency of Country D as from 10 June 2016 until the date of effective payment.

21. Moreover, the Dispute Resolution Chamber decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Chamber’s respective longstanding jurisprudence in this regard.

22. In continuation, taking into account the consideration under number II./18. above, the DRC 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.

23. The DRC established that by virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. In this context, the DRC highlighted that, on 21 September 2017, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and with the Respondent having responded to the relevant claim, as a result of which a warning had been imposed on the Respondent by the Dispute Resolution Chamber.

24. Moreover, the DRC 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 more severe penalty.

25. Bearing in mind that the Respondent has replied to the claim of the Claimant as well as the considerations under numbers II./23. and II./24. above, the Chamber decided to impose a reprimand on the Respondent in accordance with art. 12bis par. 4 lit. b) of the Regulations.

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 555,186 in the currency of Country D plus 5% interest p.a. as from 10 June 2016 until the date of effective payment.

3. In the event that the amount plus interest 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 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 Dispute Resolution Chamber of every payment received.

6. A reprimand 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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives