F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 6 September 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 6 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 1 March 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 as from the date of signature until 10 December 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant, inter alia, a monthly salary of 1,200,000.

3. By correspondence dated 13 February 2017, the Claimant put the Respondent in default of payment of his salary for the period between 1 November and 10 December 2016. By means of such correspondence, the Claimant set a 10 days’ time limit in order to remedy the default.

4. On 6 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 1,628,751, corresponding to:

- 1,200,000 for the salary of November 2016;

- 428,751 for the salary of the period between 1 and 10 December 2016.

5. The Claimant further asked to be awarded interest of 5% on the aforementioned amounts as of 10 December 2016 and that the Respondent be ordered to pay all legal expenses and procedural costs.

6. In reply to the claim, the Respondent held that its debt towards the Claimant, on 10 December 2016, amounted to 1,524,545, without specifying the contractual obligations this amount is related to. Moreover, the Respondent stated, without providing any evidence, that it paid such amount to the Claimant as follows:

- 990,000 on 19 April 2017;

- 534,545 on 31 July 2017.

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 6 July 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 6 July 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 1 March 2016 until 10 December 2016. The DRC judge also took note that, pursuant to the employment contract, the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of 1,200,000.

7. The Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the amount of 1,628,751, corresponding to:

a) 1,200,000 for the salary of November 2016;

b) 428,751 for the salary of the period between 1 and 10 December 2016.

6. In this context, the DRC judge took particular note of the fact that, on 13 February 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a 10 days’ time limit in order to remedy the default.

7. 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).

8. Subsequently, the DRC judge took into account that the Respondent, for its part, did not dispute that the Claimant was entitled to the salary for the requested period. It stated however that he was entitled to a lower amount and that it had already paid it. Having noticed the above, the DRC judge referred to art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. On the basis of said principle, the DRC judge concluded that it was up to the Respondent to prove that it actually provided the Claimant with the salaries he was entitled to.

9. Having stated the above, the DRC judge held that the Respondent did not substantiate its allegations, as it did not provide evidence which could prove that the payment regarding the claimed amounts was actually made to the Claimant.

10. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount 1,628,751, corresponding to the salary for the period between 1 November and 10 December 2016.

11. 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.

12. 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 in the total amount of 1,628,751.

13. 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 amount of 1,628,751, as from 11 December 2016 until the date of effective payment.

14. 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.

15. 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 two different occasions, 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. The first one on 18 May 2017, as a result of which a warning had been imposed on the Respondent by the DRC judge. The second on 6 September 2017, as a result of which a reprimand had been imposed on the Respondent by the DRC judge.

16. 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.

17. Bearing in mind that the Respondent has replied to the claim of the Claimant as well as the considerations under numbers II./16. and II./17. 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 1,628,751, the DRC judge regarded a fine amounting to CHF 1,000 as appropriate and hence decided to impose said fine on the Respondent.

18. Furthermore, as regards the claimed legal expenses and procedural costs, the DRC judge referred to art. 18 par. 4 of the Procedural Rules as well as to the long-standing and well-established jurisprudence of the DRC, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the DRC judge decided to reject the Claimant’s request relating to legal expenses. Furthermore, in this context, the DRC judge highlighted that according to art. 18 par. 2 of the Procedural Rules, DRC proceedings relating to employment-related disputes between a club and a player of an international dimension are free of charge.

19. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

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 as from the date of notification of this decision, overdue payables in the amounts of 1,628,751, plus interest at the rate of 5% p.a. as from 11 December 2016 until the date of effective payment.

3. In the event that the aforementioned sum plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s 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 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