F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – (2018-2019) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 26 November 2018

Decision of the Single Judge of the Players’ Status Committee

passed on 26 November 2018,

by

Mr Johan van Gaalen (South Africa)

on the claim presented by the club,

Club A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding a contractual dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 4 July 2018, the Claimant and the Respondent signed a transfer agreement regarding the transfer of the player, Player E, from the Claimant to the Respondent.

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia EUR 850,000 “after 5 working days after release the ITC”.

3. On 19 July 2018, the parties agreed upon a payment plan in respect to the amount of EUR 850,000 (hereinafter: the payment plan) established in the transfer agreement, as follows: “first payment of EUR 300,000 no later than July 30th 2018 and the second payment of EUR 550,000 no later than August 15th 2018”.

4. By correspondence dated 15 September 2018, sent on 16 September 2018, the Claimant put the Respondent in default of payment of EUR 550,000, 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 it overdue payables in the amount of EUR 550,000 corresponding to the second instalment due on 15 August 2018 in accordance with the payment plan.

6. The Claimant further asks to be awarded interest of 5% p.a. as from the 14 July 2018.

7. In reply to the claim, the Respondent acknowledged its debt in the amount of EUR 550,000 and explained that although “as stipulated in the transfer contract, we should have paid the transfer fee until now” it was not able to make the payment due to “Country D’s foreign exchange control and declaration procedures”. Moreover, the Respondent stated “We will try our best to communicate with the related Foreign Management Department and transfer the payment as soon as possible.”

II. Considerations of the Single Judge of the Player’s Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed whether he was competent to deal with the matter at hand. In this respect, the Single Judge took note that the present matter was submitted to FIFA on 15 October 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 Single Judge referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and par. 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition 2018), the Single Judge is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations.

3. Furthermore, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the Single Judge 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 15 October 2018, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single 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 Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement, regarding the definitive transfer of the player from the Claimant to the Respondent, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of EUR 850,000, payable in one instalment.

6. Furthermore, the Single Judge acknowledged that the Claimant and the Respondent agreed upon a payment plan in respect to the amount of EUR 850,000 established in the transfer agreement with the first instalment in the amount of EUR 300,000 due on 30 July 2018 and the second instalment in the amount of EUR 550,000 due on 15 August 2018.

7. The Single Judge further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of EUR 550,000, being related to the second instalment, plus 5% interest p.a. as from 14 July 2018.

8. In this context, the Single Judge took particular note of the fact that, on 16 September 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a ten-day time limit in order to remedy the default.

9. Consequently, the Single 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 obligations.

10. Subsequently, the Single Judge took into account that the Respondent acknowledged that it owes to the Claimant the part of the transfer fee claimed by it for the permanent transfer of the player.

11. Having said this, the Single Judge recalled that, in accordance with the payment plan, the Respondent was obliged to pay to the Claimant the total amount of EUR 850,000, of which EUR 550,000 remained uncontestably outstanding.

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

13. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the total amount of EUR 550,000 payable to the Claimant. Furthermore, in accordance with Claimant’s request and the Single Judge’s jurisprudence, interest at the rate of 5% p.a. shall apply as from 16 August 2018 on EUR 550,000 until the date of effective payment.

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

15. Consequently, the Single 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 EUR 550,000.

16. In continuation, taking into account the consideration under number II./14. above, the Single 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.

17. The Single 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 Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

18. In this respect, the Single 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.

19. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25,000 are levied and which states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party.

20. Taking into account that the claim of the Claimant has been partially accepted and that the responsibility of the failure to comply with the payment of the amount as agreed in the payment plan can entirely be attributed to the Respondent, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 550,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

21. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Club 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 550,000, plus interest at the rate of 5% p.a. as from 16 August 2018 until the date of effective payment.

3. If the aforementioned amount plus interest is not paid within the aforementioned deadline, 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 final amount of costs of the proceedings in the amount of CHF 20,000 is to be paid by the Respondent, within 30 days as from the notification of the present decision, as follows:

a) The amount of CHF 5,000 has to be paid to the Claimant.

b) The amount of CHF 15,000 has to be paid 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

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.a) are to be made and to notify the Single Judge of every payment received.

7. 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 Single Judge

of the Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives