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 November 2017

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 27 November 2017,

by Mario Gallavotti (Italy), 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 17 May 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 17 May 2015 until 30 May 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant inter alia the following remuneration:

a. USD 20,000 “paid by signing of this contract”;

b. USD 30,000 “payable in August 2015”;

c. USD 5,000 as “monthly salary payable in end of each month during the period covered by this contract”.

3. By correspondence dated 8 June 2017, the Claimant put the Respondent in default of payment of the amount of USD 40,000 setting a 10 days’ time limit in order to remedy the default.

4. On 4 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 USD 40,000 corresponding to:

a. USD 25,000 as outstanding part of the total amount of USD 30,000 “payable in August 2015” that the player was entitled to receive;

b. USD 15,000 as outstanding salaries for the months of July, August and September 2015 (i.e. 3x USD 5,000).

5. 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 4 August 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 4 August 2017, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. Subsequently, the DRC judge duly noted that with regard to the fact that the employment contract at the basis of the dispute was concluded on 17 May 2015, and that the Claimant had lodged his claim on 4 August 2017, he should examine if the present claim – or any part of it – should be considered as time-barred.

5. In this respect, the DRC judge referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

6. In view of the above, the DRC judge deemed it fundamental to underline that in order to determine whether he could hear the present matter, he should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations. In this respect, the DRC judge referred to the claim of the Claimant, according to which the latter requested outstanding salaries for the period between July 2015 until September 2015.

7. On account of the foregoing and considering that the contract did specify a payment date of the salaries, i.e. “at the end of each month during the period covered by this contract”, the DRC judge determined that the salaries fell due at the end of each working month. Consequently, the DRC judge decided that the event giving rise to the dispute and hereby the starting point of the time period of two years set out under art. 25 par. 5 of the Regulations regarding the salaries from July to September 2015 occurred on 31 July 2015, 31 August 2015 and 30 September 2015 respectively.

8. As a consequence, recalling that the present claim was submitted to FIFA on 4 August 2017, the DRC judge concluded that the time limit of two years had elapsed for the salary of July 2015. Therefore, only part of the claim of the Claimant can be heard by the DRC judge, i.e. the claim for the salaries of August and September 2015 as well as the claim for the outstanding part of the second instalment “payable in August 2015”.

9. 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.

10. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid as from 17 May 2015 until 30 May 2016, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the following amounts:

a. USD 20,000 “paid by signing of this contract”;

b. USD 30,000 “payable in August 2015”;

c. USD 5,000 as “monthly salary payable in end of each month during the period covered by this contract”.

11. 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 40,000 corresponding to:

a. USD 25,000 as outstanding part of the total amount of USD 30,000 “payable in August 2015” that the player was entitled to receive;

b. USD 15,000 as outstanding salaries for the months of July, August and September 2015 (i.e. 3x USD 5,000).

12. In this context, the DRC judge took particular note of the fact that, on 8 June 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.

13. 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).

14. 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.

15. Furthermore, as a consequence of the aforementioned consideration, the DRC judge concurred 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.

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

17. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s monthly remuneration in the total amount of USD 10,000 corresponding to two monthly salaries as from August 2015 until and including September 2015, as well as the amount of USD 25,000 corresponding to the outstanding part of the second instalment “payable in August 2015” as per the contract.

18. 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.

19. 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 35,000.

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

21. 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 19 May 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 without the Respondent having responded to the relevant claim, as a result of which a fine had been imposed on the Respondent by the DRC Judge.

22. 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.

23. Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as the considerations under numbers II./21. and II./22. 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 35,000 as well as the aggravating circumstance of a repeated offence, the DRC judge regarded a fine amounting to CHF 7,500 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 insofar as it is admissible.

2. The Respondent, Club C, has to pay to the Claimant overdue payables in the amount of USD 35,000 within 30 days as from the date of notification of this decision.

3. In 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 judge of every payment received.

5. The Respondent is ordered to pay a fine in the amount of CHF 7,500. 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