F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 28 March 2019

Decision of the

Dispute Resolution Chamber (DRC) judge

passed on 28 March 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 6 September 2017, 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 its date of signature until 31 May 2020.

2. On 28 August 2018, the Claimant and the Respondent signed an agreement (hereinafter: the termination agreement) by means of which they terminated the employment contract with immediate effect.

3. In accordance with the termination agreement, the Respondent undertook to pay the Claimant the amount of USD 12,000 in two instalments as follows: USD 3,000 on 28 August 2018 and USD 9,000 on 30 September 2018.

4. By correspondence dated 1 November 2018, the Claimant put the Respondent in default for the payment of the amount of USD 9,000, corresponding to the second instalment set out in the termination agreement, setting a time limit expiring on 12 November 2018 in order to remedy the default.

5. On 7 February 2019, the Claimant lodged a claim against the Respondent in front of FIFA, asking that the Respondent be ordered to pay him overdue payables in the amount of USD 9,000, corresponding to the second instalment of the termination agreement.

6. The Claimant further asked to be awarded interest of 5% on the aforementioned amount as from 30 September 2018.

7. In reply to the claim, the Respondent held that the player “was duly paid as per the provisions of the contract”. In this respect, in support of its arguments, the Respondent submitted alleged payment receipts, not translated in an official FIFA language, the most recent of which appears to be dated 28 August 2018 and refer to the amount of USD 3,000.

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 7 February 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 7 February 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 took note that, on 28 August 2018, the Claimant and the Respondent signed a termination agreement, in accordance with which the Claimant was entitled to receive from the Respondent the amount of USD 12,000 in two instalments of USD 3,000 and USD 9,000, on 28 August 2018 and 30 September 2018 respectively.

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 9,000, corresponding to the second instalment set out in the termination agreement.

7. In this context, the DRC judge took particular note of the fact that, on 1 November 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 12 November 2018 in order to remedy the default.

8. Consequently, the DRC judge concluded that the Claimant 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 the Claimant “was duly paid as per the provisions of the contract” and submitted some alleged payment receipts which, however, were not translated in an official FIFA language.

10. In this respect, the DRC judge first recalled that, in accordance with art. 9 par. 1 lit. e) of the Procedural Rules, all documentation provided in the context of a dispute in front of FIFA should be presented in the original version and, if applicable, translated into one of the official FIFA languages (English, French, Spanish and German). Bearing in mind the wording of the aforementioned provision, the DRC judge was eager to emphasise that the Respondent failed to submit such documents translated into one of the four official FIFA languages and, therefore, he concluded that said documents could not be taken into account. What is more, the DRC judge was comforted with such conclusion by the fact that, however, the apparently most recent receipt submitted by the Respondent seems to refer to the amount of USD 3,000 and be dated 28 August 2018; therefore it appears to refer to the first instalment of the termination agreement, rather than to the second.

11. In view of the aforementioned considerations, the DRC judge concluded 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.

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

13. On account of the aforementioned considerations, the DRC judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 9,000, as provided by the second instalment of the termination agreement.

14. 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.

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 overdue payables in the total amount of USD 9,000.

16. In continuation, 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 the amount of USD 9,000 as from 1 October 2018 until the date of effective payment.

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

18. With the above in mind, 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 March 2019, 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 had been imposed on the Respondent by Single judge of the Players’ Status Committee.

19. 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 a more severe penalty.

20. Bearing in mind the considerations under numbers II./18. and II./19. 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 9,000 as well as the aggravating circumstance of the repeated offence, the DRC judge regarded a fine amounting to CHF 1,500 as appropriate and, hence, decided to impose said fine on the Respondent.

21. The DRC judge concluded his deliberations by rejecting any further claim of the Claimant.

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, overdue payables in the amount of USD 9,000, plus interest at the rate of 5% p.a. as from 1 October 2018 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid to the Claimant 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. The Respondent is ordered to pay a fine in the amount of CHF 1,500. 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. XXXXXXX/XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

kO

*****

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