F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 8 March 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 8 March 2018,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Stefano Sartori (Italy), member

Pavel Pivovarov (Russia), member

Muzammil Bin Mohamed (Singapore), 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 27 January 2015, the player of Country B, Player A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), signed an employment contract valid as from the date of signature until 31 December 2019.

2. On 27 May 2016, the Claimant and the Respondent signed an “Additional Agreement n. 1 to the Contract n. 3 of 27 January 2015” (hereinafter: settlement agreement).

3. In accordance with the settlement agreement, the Respondent undertook to pay to the Claimant EUR 157,000 in “12 monthly equal instalments in the amount of 13 080,00 […] Euros each payable the 1st day of each month, starting from the 1st of July 2016 and until the 1st of June 2017”.

4. By correspondence dated 7 July 2017, the Claimant put the Respondent in default of payment of EUR 157,000 setting a 10 days’ time limit in order to remedy the default.

5. On 8 August 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 EUR 157,000 corresponding to the 12 monthly instalments provided in the settlement agreement.

6. In spite of having been invited to do so, the Respondent has not replied to the claim.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter: 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 8 August 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 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), it 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 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 8 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 and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the DRC started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Chamber emphasized 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, on 27 January 2015, the Claimant and the Respondent signed an employment contract valid as from the date of signature until 31 December 2019.

6. Furthermore, the members of the Chamber observed that, on 27 May 2016, the Claimant and the Respondent signed a settlement agreement.

7. In continuation, the Chamber noted that, in accordance with the settlement agreement, the Respondent undertook to pay to the Claimant EUR 157,000 in “12 monthly equal instalments in the amount of 13 080,00 […] Euros each payable the 1st day of each month, starting from the 1st of July 2016 and until the 1st of June 2017”.

8. 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 157,000, corresponding to the 12 monthly instalments provided in the settlement agreement.

9. In this context, the DRC took particular note of the fact that, on 7 July 2017, the Claimant put the Respondent in default of payment of the amount of EUR 157,000, setting a 10 days’ time limit in order to remedy the default.

10. Consequently, 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).

11. Subsequently, the DRC 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 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 concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.

7. Having said this, the DRC acknowledged that, in accordance with the contract, the Respondent was obliged to pay to the Claimant the amount of 157,000 in “12 monthly equal instalments in the amount of 13 080,00 […] Euros each payable the 1st day of each month, starting from the 1st of July 2016 and until the 1st of June 2017”.

8. Taking into account the documentation presented by the Claimant in support of his petition, the Chamber concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

9. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 157,000, corresponding to the 12 monthly instalments envisaged in the settlement agreement.

10. In addition, the Chamber established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

11. Consequently, 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 total amount of EUR 157,000.

12. In continuation, taking into account the consideration under number II./10. 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.

13. The Chamber established that in virtue of the aforementioned article, it has competence to impose sanctions on the Respondent. In this context, the members of the Chamber highlighted that on 28 April 2016, on 13 May 2016 and on 5 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, in all the mentioned occasions, without the Respondent having responded to the relevant claim, as a result of which a fine was imposed on the Respondent by the Dispute Resolution Chamber. Consequently, the Chamber established that, for the fourth time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.

14. In this respect, the Chamber 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.

15. Bearing in mind the considerations under numbers II./12. and II./13. above, the DRC decided that in the event that the Respondent does not pay the amount due to the Claimant within the 30 days following the notification of the present decision, a ban from registering any new players, either nationally or internationally, for the next two registration periods following the notification of the present decision shall become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) of the Regulations.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Player A, is accepted.

2. The Respondent, Club C, has to pay overdue payables in the amount of EUR 157,000 to the Claimant within 30 days as from the date of notification of this decision.

3. In the event that the event that the amount due to the Claimant is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and 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 of every payment received.

5. The Respondent is ordered to pay a fine in the amount of CHF 75,000. 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

6. In the event that the amount due to the Claimant is not paid by the Respondent within 30 days as from the date of notification of this decision, the Respondent shall be banned from registering any new players, either nationally or internationally, for the next two registration periods following the notification of the present decision.

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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:

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS directives