DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - CAMERA DI RISOLUZIONE DELLE CONTROVERSIE - DEBITI SCADUTI

• Data decisione: 26 marzo 2018 • Stagione sportiva: 2017/2018

F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 26 March 2018

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 26 March 2018,

by Philippe Diallo (France), 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 July 2013, 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 its date of signature until 30 June 2016.

2. According to the Claimant, the parties signed various documents by means of which they mutually terminated the employment contract and agreed on several payment plans of the amounts to be paid by the Respondent to the Claimant. On 17 March 2017, the parties eventually signed a compensation agreement to specify the remaining amounts due by the Respondent to the Claimant (hereinafter: agreement).

3. In accordance with article 2 the agreement, the Respondent undertook to pay to the Claimant the total amount of EUR 96,700 in 9 instalments as follows:

 EUR 12,000 on 30 April 2017;

 EUR 12,400 on 30 May 2017;

 EUR 12,400 on 30 June 2017;

 EUR 12,400 on 30 July 2017;

 EUR 12,400 on 30 August 2017;

 EUR 12,400 on 30 September 2017;

 EUR 7,400 on 30 October 2017;

 EUR 7,400 on 30 November 2017;

 EUR 7,900 on 30 December 2017.

Furthermore, in article 3 of the agreement the parties agreed upon the following clause: “If Club C does not pay on time and as agreed two consecutive of the mentioned instalments in par. 2, then the total remaining amount will become due and payable, under the condition that the player would have notified an extrajudicial statement-call, by which he will describe the due amount and he will set a final deadline of 15 calendar days for the payment. In this case, the date on which the remaining amount will automatically become due and payable, will be considered the 16th day following the notification of the extrajudicial statement and an amount of 2,500€ will be due and payable as well by Club C for the extrajudicial costs.”

4. Following previous default notices, by correspondence dated 4 October 2017, received by the Respondent on 26 October 2017, the Claimant granted the Respondent 15 days to pay the outstanding debt relating to the instalments due as of 30 May 2017. In the same correspondence, the Claimant highlighted that in the absence of payment, he would be entitled to ask for immediate payment of the total remaining amount due in accordance with art. 3 of the agreement.

5. By correspondence dated 15 December 2017, the Claimant put the Respondent in default of payment of the amount of EUR 81,200, setting a 15 days’ time limit in order to remedy the default.

6. On 1 December 2017, completed on 2 January 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 81,200, corresponding to the remaining part of the second instalment, due on 30 May 2017, as well as the full subsequent instalments due between 30 June and 30 December 2017 and the amount of EUR 2,500 relating to contractual extrajudicial costs in accordance with the agreement (cf. point I./3. par. 2 above).

7. In this respect, the Claimant explained that the Respondent only paid him the following amounts:

 EUR 6,000 on 8 June 2017, corresponding to the first part of the amount due on 30 April 2017;

 EUR 6,000 on 7 August 2017, corresponding to the second part of the amount due on 30 April 2017;

 EUR 6,000 on 1 September 2017, corresponding to part of the amount due on 30 May 2017.

8. Therefore, in view of the contents of article 3 of the agreement, according to the Claimant, as from 10 November 2017, all the remaining amounts under the compensation agreement were due.

9. The Claimant further asks to be awarded interest of 5% p.a. “as from the successive days of the date that the amounts were contractually due” until the date of effective payment.

10. 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 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 1 December 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is 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 2018) 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 2018), and considering that the present claim was lodged on 1 December 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 as from 4 July 2013 until 30 June 2016. Moreover, the DRC judge acknowledged that, on 17 March 2017, the Claimant and the Respondent signed the agreement according to which the Respondent undertook to pay to the Claimant the total amount of EUR 96,700 in 9 instalments as follows:

 EUR 12,000 on 30 April 2017;

 EUR 12,400 on 30 May 2017;

 EUR 12,400 on 30 June 2017;

 EUR 12,400 on 30 July 2017;

 EUR 12,400 on 30 August 2017;

 EUR 12,400 on 30 September 2017;

 EUR 7,400 on 30 October 2017;

 EUR 7,400 on 30 November 2017;

 EUR 7,900 on 30 December 2017.

6. The DRC judge further recalled that according to art. 3 of the agreement, an additional EUR 2,500 would fall due relating to extrajudicial costs in the event of, inter alia, the Respondent failing to remit the instalments in accordance with the agreement.

7. 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 81,200, corresponding to the remaining part of the second instalment, due on 30 May 2017, as well as the full subsequent instalments due between 30 June and 30 December 2017 and the amount of EUR 2,500 relating to contractual extrajudicial costs in accordance with the agreement.

8. In addition, the DRC judge underlined that, by correspondence dated 4 October 2017, received by the Respondent on 26 October 2017, the Claimant granted the Respondent 15 days to pay the outstanding debt relating to the instalments due as of 30 May 2017. In the same correspondence, the Claimant highlighted that in the absence of payment, he would be entitled to ask for immediate payment of the total remaining amount due in accordance with art. 3 of the agreement. In this respect, and bearing in mind the contents of art. 3 of the agreement, the DRC judge agreed with the Claimant’s argument that in the event of non-payment, as from 10 November 2017, all the remaining amounts under the agreement would have fallen due.

9. In this context, the DRC judge took particular note of the fact that, on 15 December 2017, the Claimant put the Respondent in default of payment of the amount of EUR 81,200, setting a 15 days’ time limit in order to remedy the default.

10. 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).

11. 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.

12. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concluded 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.

13. Having said this, the DRC judge recalled the contractual terms set out in the agreement and concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

14. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s receivables in accordance with the agreement in the total amount of EUR 81,200, corresponding to (i) the remaining part of the second instalment, due on 30 May 2017, as well as (ii) the full subsequent instalments due between 30 June and 30 December 2017 and (iii) the amount of EUR 2,500 relating to contractual extrajudicial costs.

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 EUR 81,200.

17. 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. as follows:

 on the amount of EUR 6,400 as of 31 May 2017 until the date of effective payment;

 on the amount of EUR 12,400 as of 1 July 2017 until the date of effective payment;

 on the amount of EUR 12,400 as of 31 July 2017 until the date of effective payment;

 on the amount of EUR 12,400 as of 31 August 2017 until the date of effective payment;

 on the amount of EUR 12,400 as of 1 October 2017 until the date of effective payment;

 on the amount of EUR 7,400 as of 31 October 2017 until the date of effective payment;

 on the amount of EUR 7,400 as of 1 December 2017 until the date of effective payment;

 on the amount of EUR 7,900 as of 31 December 2017 until the date of effective payment;

 on the amount of EUR 2,500 as of 11 November 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 by 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 9 November 2017 and 21 December 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 claims.

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 that the Respondent has not replied to the claim of the Claimant as well as the considerations under numbers II./19. and II./20. above, 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 EUR 81,200, the DRC judge regarded a fine amounting to CHF 10,000 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 EUR 81,200, plus interest at the rate of 5% p.a. as follows: