F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 31 August 2017
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 31 August 2017,
in the following composition:
Geoff Thompson (England), Chairman
Theo van Seggelen (Netherlands), member
Takuya Yamazaki (Japan), member
Todd Durbin (United States of America), member
Wouter Lambrecht (Belgium), 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 “20 August 2014”, the Player of Country B, Player A (hereinafter; the Claimant) and the Club of Country D, Club C (hereinafter; the Respondent) (hereinafter jointly referred to as the parties) concluded an employment contract valid as of 17 July 2014 until 31 May 2016.
2. According to the contract, the Claimant was entitled to receive from the Respondent the following amounts:
a. For the 2014/2015 season the total amount of EUR 750,000
b. For the 2015/2016 season:
i. EUR 215,000 on 30 July 2015;
ii. EUR 435,000 as total salary payable in 10 equal instalments of EUR 43,500 from August 2015 until May 2016 on the 25th day of the following month.
3. After having done so in July 2016, on 12 August 2016, the Claimant put the Respondent in default of payment of EUR 210,950 corresponding to his salaries of (part of) January, February, March, April and May 2016 granting a deadline until 23 August 2016 in order to remedy the default.
4. On 8 August 2016, completed on 7 September 2016, the Claimant lodged a claim against the Respondent in front of FIFA requesting the total outstanding amount of EUR 210,950 comprised of his salaries of (part of) January, February, March, April and May 2016 as well as 5% interest p.a. as of the relevant due dates.
5. In particular, the Claimant explained that despite requesting the Respondent for his outstanding salaries, the latter did not make any payment.
6. In its reply to the claim, the Respondent acknowledged having a debt towards the Claimant however only of EUR 137,119. In particular, the Respondent argued that the total value of the contract was of EUR 1,400,000 and that it made payments to the Claimant in the amount of EUR 1,262,880.12.
7. In this respect, the Respondent enclosed the following payment schedule: XXX
8. Moreover, according to the Respondent, the Claimant continuously created problems by not attending to training and matches.
9. In his replica, the Claimant first pointed out that the Respondent recognised having a debt towards him of EUR 137,119. Nevertheless, the Claimant rejected that this amount constitutes the total debt.
10. In this regard, the Claimant addressed the aforementioned payment schedule and stressed that not all the payments referred therein relate to his salary as some of them clearly relate to bonus payments for results. In particular, the Claimant pointed out the payments which in the column “Explanation” refer to a “match”.
11. As such, the Claimant slightly amended his claim and requested EUR 210,855.13.
12. In spite of having been granted an extension of the deadline to file its final comments, the Respondent did not submit any further position.
II. Considerations of the Dispute Resolution Chamber
1. First, the Dispute Resolution Chamber (hereinafter also referred to as the Chamber or DRC) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 8 August 2016. Consequently, the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter; the Procedural Rules) is applicable to the matter at hand (cf. article 21 of the Procedural Rules).
2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition 2016), the Dispute Resolution Chamber is competent to deal with the matter at stake, which concerns an employment-related dispute with an international dimension between a player from Country B and a Club of Country D.
3. Furthermore, the Chamber analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Chamber confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the claim was lodged on 8 August 2016, the 2016 edition of the aforementioned regulations (hereinafter; the Regulations) is applicable to the matter at hand as to the substance.
4. The competence of the Chamber and the applicable regulations having been established, and entering into the substance of the matter, the Chamber started by acknowledging the above-mentioned facts as well as the documentation contained in the file. However, the Chamber emphasised 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. In this context, the members of the Chamber first acknowledged that the parties entered into an employment contract valid as of 17 July 2014 until 31 May 2016, according to which the Claimant was entitled to receive from the Respondent the total amount of EUR 1,400,000. The Chamber further noted that, during the season 2015/2016, the Claimant was entitled to, inter alia, a monthly salary of EUR 43,500 as from August 2015 until May 2016, payable on the 25th day of the following month.
6. In continuation, the Chamber took note of the claim of the Claimant who argues that the Respondent has overdue payables towards him in the total amount of EUR 210,855.13 corresponding to his salaries of (part of) January, February, March, April and May 2016.
7. The DRC further noted that, conversely, the Respondent only acknowledged a debt of EUR 137,119 in accordance with the payment schedule described in point I./7. ut supra. Nevertheless, the Claimant disputed said calculation by arguing that not all payments contained in said schedule refer to his salaries but rather to certain match bonuses.
8. Having established the above, and prior to entering into the analysis of the parties’ allegations, the members of the Chamber wished to recall first that, according to art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. Hence, in casu, it is for the Respondent to prove, to the Chamber’s satisfaction, that it has indeed made all the contractually agreed payments to the Claimant.
9. With the above in mind, the members of the Chamber turned their attention to the relevant schedule and underlined that the Claimant is not disputing having received all the amounts provided therein; he however challenges the nature of said payments arguing that not all of them refer to his salaries. In this regard, the Chamber was of the unanimous opinion that the Claimant’s argumentation can be upheld.
10. Indeed, from the relevant schedule submitted by the Respondent, it is evident that the latter recognised that some of the payments contained therein do not relate to the Claimant’s salaries but apparently to some extra payments related to certain matches. Certainly, the column “Explanation” clearly distinguishes the payments which refer to the Claimant’s salaries and those related to “matches”.
11. On account of the aforementioned considerations, the Chamber came to the unanimous conclusion that, in order to determine the overdue payables, if any, that the Respondent has towards the Claimant, only the amounts foreseen in the schedule as salary payments will be taken into account.
12. Having said this, and after the relevant calculation, the members of the Chamber determined that the total salary payments that the Respondent managed to prove, in accordance with the schedule, amount to EUR 1,191,570. It follows therefore that the Respondent’s overdue payables towards the Claimant amount to EUR 208,430.
13. As a result, the members of the Chamber concurred that the Respondent must fulfil its obligations as per the contract in accordance with the general legal principle of pacta sunt servanda and that, thus, the Respondent is liable to pay to the Claimant the total amount of EUR 208,430.
14. In addition, taking into account the Claimant’s request, the DRC decided that the Respondent must pay to the Claimant interest of 5% p.a. as of the relevant due dates.
15. Furthermore, the DRC took particular note of the fact that, on 12 August 2016, the Claimant put the Respondent in default of payment of the aforementioned overdue payables, setting a time limit of 11 days in order to remedy the default.
16. Consequently, the Chamber 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) and that the Respondent had thus delayed a due payment for more than 30 days without a prima facie contractual basis.
17. In this respect, 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.
18. The Chamber established thus 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 3 June 2016, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which, a fine of CHF 1,000 was imposed on the Respondent by the Dispute Resolution Chamber (DRC) judge. Consequently, the Chamber established that, for the second time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.
19. Moreover, the Chamber 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.
20. Bearing in mind the considerations under numbers II./17. and II./18. above, the Chamber 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 EUR 208,430 as well as the aggravating circumstance of a repeated offence, the DRC regarded a fine amounting to CHF 15,000 as appropriate and hence decided to impose said fine on the Respondent.
21. The members of the Chamber concluded their deliberations by establishing that any other claim lodged by the Claimant is rejected.
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 to the Claimant, within 30 days as from the date of notification of this decision, overdue payables in the amount of EUR 208,430 plus 5% interest p.a. until the date of effective payment as follows:
a. 5% interest p.a. on the amount of EUR 34,430 as of 26 February 2016;
b. 5% interest p.a. on the amount of EUR 43,500 as of 26 March 2016;
c. 5% interest p.a. on the amount of EUR 43,500 as of 26 April 2016;
d. 5% interest p.a. on the amount of EUR 43,500 as of 26 May 2016;
e. 5% interest p.a. on the amount of EUR 43,500 as of 26 June 2016.
3. In the event that the amount, plus interest, due to the Claimant is not paid by the Respondent within the stated time limit, 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 Dispute Resolution Chamber of every payment received.
5. Any other claim lodged by the Claimant is rejected.
6. The Respondent is ordered to pay a fine in the amount of CHF 15,000. 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
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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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives