F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 9 November 2017

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 9 November 2017,

in the following composition:

Geoff Thompson (England), Chairman

Johan van Gaalen (South Africa), member

Tomislav Kasalo (Croatia), member

Mario Gallavotti (Italy), member

Joel Talavera Zárate (Paraguay), 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 22 January 2015, the Player of Country B, Player A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded an employment contract (hereinafter: the contract) valid as from the date of signature until 31 May 2017.

2. On 11 September 2015, the aforementioned parties signed a “mutual termination and release agreement” (hereinafter: the termination agreement) according to which the Respondent undertook to pay the amount of EUR 178,752 to the Claimant on 15 October 2015 at the latest.

3. By correspondence dated 4 August 2017, the Claimant put the Respondent in default of payment of EUR 178,752 setting a 10 days’ time limit in order to remedy the default.

4. On 15 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 178,752 plus 5% interest p.a. as from the due date, 15 October 2015.

5. Furthermore, the Claimant also requested that the Respondent reimburse “the extrajudicial costs of EUR 5,000” and bear all “costs of the current proceeding”.

6. In support of his claim, the Claimant explained that after his default notice, the Respondent neither paid him any sum nor did it react to his request related to the payment.

7. 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 15 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) are 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.

In this respect, the Chamber was eager to emphasize that contrary to the information contained in FIFA’s letter dated 3 November 2017 by means of which the parties were informed of the composition of the Chamber, the member Daan de Jong and the member Stijn Boeykens refrained from participating in the deliberations in the case at hand, due to the fact that the member Daan de Jong has the same nationality as the Claimant and that, in order to comply with the prerequisite of equal representation of club and player representatives, also the member Stijn Boeykens refrained from participating and thus the Dispute Resolution Chamber adjudicated the case in presence of five members in accordance with art. 24 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016).

3. Furthermore, the DRC analyzed 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 15 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 following the conclusion of an employment contract on 22 January 2015, the Claimant and the Respondent signed on 11 September 2015 a “mutual termination and release agreement” (hereinafter: the termination agreement) according to which the Respondent undertook to pay the amount of EUR 178,752 to the Claimant on 15 October 2015 at the latest.

6. 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 178,752 corresponding to the total amount of the termination agreement.

7. In this context, the DRC took particular note of the fact that, on 4 August 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.

8. 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).

9. 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.

10. Furthermore, as a consequence of the aforementioned consideration, the Chamber 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.

11. Having said this, the DRC acknowledged that, in accordance with the termination agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant EUR 178,752.

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

13. On account of the aforementioned considerations, the DRC established that the Respondent failed to remit to the Claimant the total amount of the termination agreement amounting to EUR 178,752.

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

15. 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 178,752.

16. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the Chamber decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 178,752 as from the day following the due date, 16 October 2015, until the effective date of payment.

17. In continuation, taking into account the consideration under number II./14. 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.

18. The DRC established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. In this context, the Chamber highlighted that, on 30 September 2016, 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.

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 that the Respondent did not reply to the claim of the Claimant as well as the considerations under numbers II./18 and II./19 above, the DRC 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 178,752 as well as the aggravating circumstance of a repeated offence, the DRC regarded a fine amounting to CHF 22,500 as appropriate and hence decided to impose said fine on the Respondent.

21. Furthermore, as regards the claimed legal expenses and procedural costs, the Chamber 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 decided to reject the Claimant’s request relating to legal expenses.

22. The DRC concluded his deliberations in the present matter by establishing that any further 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 178,752, plus interest at the rate of 5% p.a. on said amount as from 16 October 2015 until the date of effective payment.

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. 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 of every payment received.

6. The Respondent is ordered to pay a fine in the amount of CHF 22,500. 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 Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives