F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 9 May 2019

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 9 May 2019,

by Philippe Diallo (France), 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 1 December 2017, the Claimant and the Respondent signed an employment contract valid as from 1 December 2017 until 30 November 2018, as well as an addendum to said agreement.

2. In accordance with the employment contract and the addendum, the Respondent undertook to pay to the Claimant a monthly salary of USD 6,000, due on the 7th day of the following month. Furthermore, according to the addendum, the Claimant was entitled to a ‘flight ticket’, ‘once a year’.

3. According to the Claimant, the Respondent failed to pay him the total amount of USD 36,000, corresponding to 6 monthly salaries for the period between June and November 2018 in the amount of USD 6,000 each, as well as the costs of a flight ticket in the amount of 109,160.

4. By correspondence dated 12 December 2018, the Claimant put the Respondent in default of payment of the amount of USD 36,000 (corresponding to the salaries) and the amount of 5,000 (allegedly corresponding to the flight ticket), setting a 10 days’ time limit in order to remedy the default.

5. 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 36,000 (corresponding to the salaries) and the amount of USD 1,000 (corresponding to the flight ticket).

6. The Claimant further asks to be awarded 5% interest p.a. on the outstanding amounts as from the respective due dates.

7. In reply to the claim, the Respondent stated that it is suffering from financial problems, however explicitly acknowledges ‘the existence of outstanding salary’. Furthermore, the Respondent explains that it is trying to find additional financial sources, and requests for an extension of 6 months to make the relevant payment.

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 8 March 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; 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 2018), 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 2018), and considering that the present claim was lodged on 8 March 2019, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. 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.

5. Having said this, the DRC judge acknowledged that the Claimant and the Respondent signed an employment contract valid between 1 December 2017 and 30 November 2018, as well as to the addendum to said contract, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of USD 6,000, as well as ‘a flight ticket’, ‘once a year’.

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 USD 36,000, corresponding to 6 unpaid monthly salaries, as well as 5,000, allegedly corresponding to a flight ticket.

7. In this context, the DRC judge took particular note of the fact that, on 12 December 2018, the Claimant put the Respondent in default of payment of USD 36,000, corresponding to outstanding salaries and the amount of USD 1,000, corresponding to a flight ticket, setting a 10 days’ time limit in order to remedy the default.

8. 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).

9. Subsequently, the DRC judge took into account that the Respondent, for its part, held that it was suffering from financial problems, however that it explicitly acknowledges ‘the existence of outstanding salary’ as well as that it was trying to find additional financial sources, to make the relevant payment.

10. In this regard, the DRC judge considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

11. Consequently, the DRC judge decided to reject the argumentation put forward by the Respondent in its defence.

12. Furthermore, taking into account the documentation presented by the Claimant in support of his petition, the DRC judge concluded that the Claimant had only partially substantiated his claim with pertinent documentary evidence. That is, the Claimant was only entitled to the reimbursement of the costs of one flight ticket, and the amount to be eventually awarded to the Claimant has to be established in Currency of Country B, in accordance with the receipt provided by the Claimant, and not in USD as claimed by the Claimant.

13. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the player’s remuneration, in the total amounts of USD 36,000, corresponding to the outstanding salaries for the period between June and November 2018, and 54,580, corresponding to the costs of one flight ticket.

14. In addition, bearing in mind the considerations under numbers II./7. and II./8. above, the DRC judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

15. 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 the total amounts of USD 36,000 and 54,580.

16. In this context and for the sake of good order, the DRC judge highlighted that in light of the prerequisites set out in art. 12bis par. 3 of the Regulations, only the outstanding amount of USD 30,000 in connection with Claimant’s claim relating to the unpaid salaries for the period between June and October 2018 is considered to fall within the scope of art. 12bis of the Regulations.

17. In addition, taking into account the Claimant’s request as well as the constant practice of the Dispute Resolution Chamber, the DRC judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on each of the relevant payment(s) as of the day following the day on which the relevant payment(s) fell due, until the date of effective payment.

18. In continuation, taking into account the consideration under number II./13. 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.

19. The DRC judge established that in virtue of art. 12bis par. 4 of the Regulations, he has competence to impose sanctions on the Respondent. Therefore, bearing in mind that the Respondent duly replied to the claim of the Claimant and in the absence of the circumstance of repeated offence, the DRC judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

20. In this respect, the DRC judge 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 DRC judge

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, the amounts of USD 36,000 and 54,580, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

a. 5% p.a. on the amount of USD 6,000 as from 8 July 2018;

b. 5% p.a. on the amount of USD 6,000 as from 8 August 2018;

c. 5% p.a. on the amount of USD 6,000 as from 8 September 2018;

d. 5% p.a. on the amount of USD 6,000 as from 8 October 2018;

e. 5% p.a. on the amount of USD 6,000 as from 8 November 2018;

f. 5% p.a. on the amount of 54,580 as from 1 December 2018;

g. 5% p.a. on the amount of USD 6,000 as from 8 December 2018.

3. In the event that the amount due to the Claimant, plus interest, 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 judge of every payment received.

6. A warning is imposed on the Respondent.

*****

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:

Emilio García Silvero

Chief Legal Officer

Encl: CAS directives