F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2016-2017) – fifa.com – atto non ufficiale – Decision 15 July 2016

Decision of the

Dispute Resolution Chamber (DRC) judge

passed in Zurich, Switzerland, on 15 July 2016,

by Theo van Seggelen (the Netherlands), 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

I. Facts of the case

1. On 20 August 2010, the player from country B, Player A (hereinafter: player or Claimant), and the club from country D, Club C (hereinafter: club or Respondent), signed an employment contract (hereinafter: contract).

2. Following a decision passed by the FIFA DRC on 23 March 2012 in an employment-related dispute between the parties and a subsequent decision rendered by the Court of Arbitration for Sport (CAS) on 31 May 2013 in appeal proceedings, on 11 September 2013, the parties signed a settlement agreement (hereinafter: agreement).

3. According to art. 1. of the agreement, the club undertook to pay to the player EUR 392,000 via a down payment of EUR 50,000 and eight consecutive monthly installments of EUR 42,750 each, payable as from 1 October 2013 until 1 May 2014.

4. According to art. 1.6 of the agreement, should the club fail to comply with the aforementioned payment schedule, an additional amount of EUR 50,000 would be due by the club to the player.

5. On 10 February 2014 and 10 March 2014, the player put the club in default of payment of the amount of EUR 58,787.88 based on the agreement and requested the disciplinary committee of FIFA to resume the proceedings which he had initiated against the club following the aforementioned CAS award and prior to entering into the agreement with the club.

6. On 3 July 2014, the club paid the aforementioned sum to the player.

7. On 9 September 2014, the player acknowledged having received EUR 58,787.88 from the club and he put the club in default of payment of the sum of EUR 50,000 based on art. 1.6 of the agreement.

8. On 26 February 2015, in view of the club’s delay in the execution of the agreement, the player once more requested the club to pay the amount of EUR 50,000 in accordance with art. 1.6 of the agreement.

9. On 4 September 2015, the player lodged a claim against the club in front of FIFA explaining that, although he had shown empathy for the club’s situation, the club had not complied with the payment plan agreed upon on 11 September 2013, which triggered the application of the mechanism set forth in art. 1.6 of the agreement.

10. Consequently, the player requested that the club be ordered to pay him EUR 50,000 in accordance with art. 1.6 of the agreement, plus 5% interest calculated as from 2 November 2013, i.e. the day following the date on which the second installment stipulated in the agreement fell due but allegedly remained unpaid by the club.

11. Additionally, the player requested that the club be ordered to reimburse his legal expenses.

12. In spite of having been invited to do so, the club has not responded to the claim.

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 4 September 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; 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 2016) he 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 from 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 2016), and considering that the present claim was lodged on 4 September 2015, the 2015 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 documentation available on file.

5. 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.

6. First and foremost, the DRC judge acknowledged that by means of the agreement signed on 11 September 2013, the Respondent undertook to pay to the Claimant EUR 392,000 via a down payment of EUR 50,000 and eight consecutive monthly instalments of EUR 42,750 each, payable as from 1 October 2013 until 1 May 2014.

7. Furthermore, the DRC judge acknowledged that according to art. 1.6 of the agreement, the Respondent’s failure to pay the respective instalments in a timely manner would result in the additional amount of EUR 50,000 being owed by the Respondent to the Claimant.

8. In continuation, the DRC judge noted that according to the Claimant, given that the Respondent had failed to remit the respective instalments in a timely manner, the Respondent is liable to pay him the additional amount of EUR 50,000 in accordance with art. 1.6 of the agreement.

9. On the other hand, the DRC judge noted that although the Respondent was invited to present its position on the Claimant’s claim, no answer was received from the Respondent.

10. In view of the aforementioned, the DRC judge deemed that the Respondent had renounced its right to defence and, thus, had accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned consideration, the DRC judge decided that, in accordance with art. 9 par. 3 of the Procedural Rules, a decision shall be taken upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

12. Reverting to the contents of the documentation available on file, the DRC judge duly noted that whereas the parties contractually agreed that the Respondent had to pay the total amount of EUR 392,000 to the Claimant by 1 May 2014 at the latest, it can be established that the Claimant received the outstanding balance of the aforementioned sum, i.e. the amount of EUR 58,787.88, in July 2014 only.

13. In this regard, the DRC judge recalled that such circumstance, in view of the Respondent not having replied to the claim, has remained uncontested.

14. Therefore, the DRC judge concluded that the Respondent had failed to pay the amount of EUR 392,000 to the Claimant in accordance with the due dates of the agreement’s instalment plan, which triggered the application of the mechanism set forth in art. 1.6 of the agreement, pursuant to which the Respondent became liable to pay to the Claimant an additional amount of EUR 50,000.

15. On account of the aforementioned considerations and in accordance with the general legal principle of pacta sunt servanda, the DRC judge decided that the Respondent is liable to pay to the Claimant the amount of EUR 50,000.

16. Furthermore, in accordance with the constant practice of the Dispute Resolution Chamber in similar matters, the DRC judge decided that interest at the rate of 5% p.a. shall fall due in the event of non-payment within and as of expiry of a time limit of 30 days of notification of the present decision.

17. Subsequently, the DRC judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Dispute Resolution Chamber’s respective longstanding jurisprudence in this regard.

18. The DRC judge concluded his deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

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 the amount of EUR 50,000 within 30 days as from the date of notification of this decision.

3. In the event that the aforementioned sum is not paid by the Respondent within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s 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.

*****

Note relating to the motivated decision (legal remedy):

According to art. 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:

Marco Villiger

Deputy Secretary General

Encl. CAS directives