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

• Data decisione: 15 dicembre 2017 • 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 15 December 2017

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 15 December 2017,

in the following composition:

Geoff Thompson (England), Chairman

Mario Gallavotti (Italy), member

Jon Newman (USA), 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 28 May 2014, 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 (hereinafter: the contract) valid as from 30 June 2014 until 30 June 2017.

2. On 11 July 2016, the Respondent and the Club of Country E, Club F, signed a “Temporary Transfer Agreement” in accordance with which the Claimant was loaned to the Club of Country E from 15 July 2016 until 30 June 2017. According to clause 3.2 of this loan agreement, during the duration of the loan “Club C will solely responsible for paying all the Player’s wages, benefits and bonuses…”.

3. On the same date, 11 July 2016, the Claimant and the Respondent signed a document referred to as “Agreement” (hereinafter: the agreement). According to clause 2 a) of the agreement, during the loan period the Respondent undertook to pay to the Claimant the amount of EUR 1,200,000 in 12 instalments of EUR 100,000 each “with first payment due on 30 July 2016 and the last on 30 June 2017”.

4. In addition, clause 2 b) of the agreement stipulates that the Claimant was entitled to receive EUR 300,000 before 30 May 2017 if, inter alia, he “...play at least 50 % of Club F matches during the loan period”.

5. By correspondence dated 25 August 2017, the Claimant put the Respondent in default of payment of EUR 900,000 setting a 10 days’ time limit in order to remedy the default.

6. On 6 September 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 900,000 consisting of:

 EUR 300,000 corresponding to the amount stipulated in clause 2 b) of the agreement;

 EUR 100,000 consisting of half of the amount of the instalments for December 2016 and January 2017 (EUR 50,000 each);

 EUR 500,000 for the full amount of the instalments as from February until June 2017 (EUR 100,000 each).

7. The Claimant further asks to be awarded EUR 15,210 as interest of 5% p.a. as from the respective due dates of each payment until 1 September 2017 as well as 5% interest p.a. on the amount of EUR 900,000 as from 1 September 2017 until the date of effective payment.

8. 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 6 September 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 and par. 2 in conjunction with art. 22 lit. b of the Regulations on the Status and Transfer of Players (edition 2016), 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 2016) and considering that the present claim was lodged on 6 September 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 the Claimant and the Respondent signed an employment contract valid as from 30 June 2014 until 30 June 2017.

6. Furthermore, the members of the Chamber observed that, on 11 July 2016, the Respondent and the Club of Country E, Club F signed a “Temporary Transfer Agreement” in accordance with which the Claimant was loaned to the Club of Country E as from 15 July 2016 until 30 June 2017 and, during the loan, “[the Respondent] will solely responsible for paying all the [Claimant’s] wages, benefits and bonuses…”.

7. In continuation, the Chamber noted that, on 11 July 2016, the Claimant and the Respondent signed the agreement, according to which during said loan period the Respondent undertook to pay to the Claimant the amount of EUR 1,200,000 in 12 instalments of EUR 100,000 each “with first payment due on 30 July 2016 and the last on 30 June 2017”.

8. According to the agreement the Claimant was further entitled to receive EUR 300,000 before 30 May 2017 if, inter alia, he “...play at least 50 % of Club F matches during the loan period”.

9. 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 900,000 consisting of the aforementioned EUR 300,000 as well as EUR 600,000 relating to half of the December 2016 and January 2017 instalments and the instalments for February until June 2017.

10. In this context, the DRC took particular note of the fact that, on 25 August 2017, the Claimant put the Respondent in default of payment of the amount of EUR 900,000, setting a 10 days’ time limit in order to remedy the default.

11. 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).

12. 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 Chamber considered that the Respondent renounced its right to defence.

13. 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.

14. Having said this, the DRC acknowledged that, in accordance with the agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 1,200,000 in 12 instalments of EUR 100,000 each with the first payment due on 30 July 2016 and the last one on 30 June 2017.

15. Furthermore, taking into account the documentation presented by the Claimant in support of his petition, the DRC concluded that the Claimant had not fully substantiated his claim pertaining to overdue payables with pertinent documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules. That is, the Claimant did not present supporting documentation relating to his claim pertaining to the amount of EUR 300,000 stipulated in clause 2 b) of the agreement, payment of which was conditioned upon the Claimant playing in at least 50% of Club F’s matches during the loan period. Consequently, the Chamber decided to reject this part of the Claimant’s claim.

16. On account of the aforementioned considerations and the documentary evidence provided by the Claimant, the DRC established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 600,000 consisting of half of the amount of the instalments for December 2016 and January 2017 (i.e. EUR 50,000 each) and EUR 500,000 for the full amount of the instalments as from February until June 2017 (i.e. EUR 100,000 each).

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

18. 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 600,000.

19. In addition, taking into consideration the Claimant’s request, the members of the Chamber decided to award the Claimant interest on the above-mentioned amount as follows:

- 5% p.a. over the amount of EUR 50,000 as from 1 January 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 50,000 as from 1 February 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 100,000 as from 1 March 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 100,000 as from 1 April 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 100,000 as from 1 May 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 100,000 as from 1 June 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 100,000 as from 1 July 2017 until 1 September 2017;

- 5% p.a. over the amount of EUR 600,000 as from 1 September 2017 until the date of effective payment.

20. Moreover, the DRC decided that any further request filed by the Claimant is rejected.

21. In continuation, taking into account the consideration under number II./17. 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.

22. The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. Therefore, and bearing in mind that the Respondent did not reply to the claim of the Claimant, the DRC 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 600,000, the DRC regarded a fine amounting to CHF 25,000 as appropriate and hence decided to impose said fine on the Respondent.

23. 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.

III. Decision of the Dispute Resolution Chamber

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

2. The Respondent, Club C, has to pay overdue payables in the amount of EUR 600,000 to the Claimant within 30 days as from the date of notification of this decision.

3. The Respondent has to pay to the Claimant, within 30 days as from the date of notification of this decision, interest of 5% p.a. as follows: