F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 27 September 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 27 September 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 2 February 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 for the season 2015/2016 until 31 May 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia a salary of USD 80,000, divided in four monthly salaries of USD 20,000 each, payable “until the 10th day of the month following the month, for which the payment is made”.

3. By correspondence dated 4 August 2016, the Claimant put the Respondent in default of payment of USD 60,000 setting a time limit expiring on 8 August 2016 in order to remedy the default. Subsequently, on 23 September 2016, the Claimant put the Respondent in default of payment of USD 60,000 setting an 8 days’ time limit in order to remedy the default.

4. On 22 May 2017, and completed on 12 July 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 60,000 corresponding to the last three monthly salaries. In this respect, the Claimant held having received only one monthly salary. The Claimant further asked to be awarded interest.

5. A correspondence was submitted “on behalf of the Liquidators of Company E (in liquidation)”, asking for the closure of the present matter due to liquidation and stating inter alia the following:

- within the scope of insolvency proceedings opened against “Company E. (hereinafter: “The Debtor”), the company which managed and operated Club C (hereinafter: “The Club”)”, a bankruptcy order was awarded on 4 January 2017, after which any claims regarding the period prior to that date, should be addressed to the liquidators nominated by court;

- according to the Law of Country D, “Insolvency proceedings stop all other pending proceedings, in order to give equal treatment to all creditors and in order to avoid any preference of any creditor over the others”;

- all creditors must approach the liquidators appointed by the court and thus, the player shall submit his claim to the office of the Liquidators of Country D.

6. Following FIFA’s request for information, the Football Association of Country D, confirmed that “Club C (hereinafter: “The Club”)” remained affiliated to the Football Association of Country D and will participate in the competitions organized under the auspices of the Football Association of Country D.

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 22 May 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 an 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 22 May 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 the Claimant and the Respondent signed an employment contract valid for the season 2015/2016 until 31 May 2016, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, a salary of USD 80,000, divided in four monthly salaries of USD 20,000 each, payable until the 10th day of the following month.

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 60,000 corresponding to the last three instalments as per the contract.

7. In this context, the DRC judge took particular note of the fact that, on 4 August 2016, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 8 August 2016 in order to remedy the default and, subsequently, on 23 September 2016, setting an 8 days’ time limit 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, merely asked for the closure of the present matter due to the liquidation process of the “Company E”.

10. At this point, the DRC judge reverted to the information provided by the Football Association of Country D and took note that the Respondent remained affiliated to the Football Association of Country D and continued to participate in the competitions organized under the auspices of the Football Association of Country D.

11. In addition, in this context, the DRC judge stressed that in accordance with jurisprudence of both the DRC and the Court of Arbitration for Sport, bankruptcy/insolvency procedures do not affect procedures in front of the DRC.

12. Consequently, the DRC judge decided to dismiss the Respondent’s request.

13. In continuation, the DRC judge took into account that the Respondent has not contested the claim of the Claimant as to the substance.

14. 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 60,000 corresponding to the last three contractual payments.

15. 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.

16. 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 60,000.

17. In addition, taking into account the Claimant’s request for interest 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 60,000 as from the date of the claim, i.e. 22 May 2017, until the date of effective payment.

18. In continuation, taking into account the consideration under number II./15. 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.

19. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the DRC judge highlighted that, on 12 August 2016, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and without the Respondent having responded to the relevant claim, as a result of which a fine had been imposed on the Respondent by the Single Judge of the Players’ Status Committee.

20. Moreover, the DRC judge 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.

21. Bearing in mind the considerations under numbers II./19. and II./20. above, the DRC judge decided to impose a more severe 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 60,000 as well as the aggravating circumstance of a repeated offence, the DRC judge regarded a fine amounting to CHF 11,250 as appropriate and hence decided to impose said fine on the Respondent.

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 60,000, plus interest at the rate of 5% p.a. as from 22 May 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. The Respondent is ordered to pay a fine in the amount of CHF 11,250. 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