F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – overdue payables / debiti scaduti – (2018-2019) – fifa.com – atto non ufficiale – Decision 6 June 2019

Decision of the

Dispute Resolution Chamber

passed by way of circulars on 6 June 2019,

in the following composition:

Geoff Thompson (England), Chairman

Philippe Diallo (France), 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 16 February 2015, 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 16 February 2015 until 16 December 2016.

2. In accordance with the employment contract, the Respondent undertook to pay to the Claimant a monthly salary of USD 204,500 for a “total of 22 months”, due on the “5th day of each month”.

3. By correspondence dated 16 October 2018, the Claimant put the Respondent in default of payment of USD 204,500, setting a 10 days’ time limit in order to remedy the default.

4. On 5 November 2018, 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 204,500 corresponding to his monthly salary of December 2016.

5. The Claimant further asked to be awarded interest of 5% p.a. as from “December 2016”.

6. In reply to the claim, the Respondent maintained that it remitted the last salary due for 1 December 2016 until 16 December 2016, which it considered to be of USD 105,548, to the alleged Agent of Country D of the Claimant, since the latter left Country D in November 2016 after the end of the League E. The Respondent suggested to resolve the matter amicably.

7. The Claimant subsequently stated that no amicable settlement was found and denied having received payments in this regard or having authorized a third party to receive money on his behalf.

8. Despite being invited to do so, the Respondent has not submitted further comments regarding the present matter.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as 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 5 November 2018. 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 members of 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 June 2018), 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 of Country B and a Club of Country D.

3. Furthermore, the Chamber 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 June 2018), and considering that the present claim was lodged on 5 November 2018, the June 2018 edition of said regulations (hereinafter: 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, the Chamber entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the DRC 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. Having said this, the Chamber acknowledged that the Claimant and the Respondent signed an employment contract valid as from 16 February 2015 until 16 December 2016, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, a monthly salary of USD 204,500 during 22 months.

6. In this regard, the Chamber established that, since the monthly salary was payable on the 5th day of each month during 22 months and the contract was valid as from 15 February 2015 until 16 December 2016, the final monthly payment of USD 204,500 fell due on 5 December 2016.

7. Furthermore, the DRC took note that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards him in the amount of USD 204,500, corresponding to the salary of the month of December 2016.

8. In this context, the members of the DRC took particular note of the fact that, on 16 October 2018, the Claimant put the Respondent in default of payment of the aforementioned amount setting a time limit of 10 days in order to remedy the default.

9. 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).

10. Subsequently, the members of the Chamber took into account that the Respondent, for its part, held that it remitted a payment of USD 105,548, allegedly corresponding to the Claimant’s last salary for the period of 1 December 2016 until 16 December 2016, to the alleged agent of the Claimant, since the Claimant had already left Country D.

11. The Claimant, for his part, denied having received such payment and that he had authorized a third party to receive payments on his behalf.

12. Having established the above, the DRC took into account that the Respondent had failed to corroborate its position with documentary evidence in accordance with art. 12 par. 3 of the Procedural Rules and concluded that it thus was not able to prove that the monies claimed, or parts of it, were remitted to the Claimant.

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

14. On account of the aforementioned considerations, the Chamber established that the Respondent failed to remit the Claimant’s remuneration in the total amount of USD 204,500 corresponding to the Claimant’s salary of December 2016.

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

16. Consequently, the members of the Chamber 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 204,500.

17. 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 USD 204,500 as from 6 December 2016 until the date of effective payment.

18. In continuation, taking into account the consideration under number II./15. above, the Chamber 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 established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. Therefore, and in the absence of the circumstance of repeated offence, the Chamber 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 wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

21. Furthermore, taking into account the consideration under number II./3. above, the Chamber referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

22. In this regard, the Chamber pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

23. Therefore, bearing in mind the above, the DRC decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

24. Finally, the Chamber recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the DRC

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

2. The Respondent, Club C, has to pay to the Claimant the amount of USD 204,500 as overdue payables plus interest at the rate of 5% p.a. as from 6 December 2016 until the date of effective payment.

3. A warning is imposed on the Respondent.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2 above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount plus interest due in accordance with point 2 above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6 above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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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:

Emilio García Silvero

Chief Legal Officer

Encl: CAS directives