F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – (2020-2021) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 23 March 2021
Decision of the
Single Judge of the Players' Status Committee
passed on 23 March 2021,
regarding a dispute concerning the transfer of the player Fabian Andres Castillo Sanchez
Vitus Derungs (Switzerland), Single Judge of the PSC
Trabzonspor Kulubu, Turkey
Represented by Mr Duygu Yasar
Tijuana Xoloitzcuintles de Caliente, Mexico
I. FACTS OF THE CASE
1. On 20 July 2018, the parties concluded an agreement (hereinafter: “the transfer agreement”) regarding the definitive transfer of the player, Fabian Andres Castillo Sanchez (hereinafter: “the player”) from the Claimant to the Respondent.
2. According to clause 1.1.2 of the transfer agreement, the Respondent undertook to pay USD 575,000 on or before 30 June 2020 to the Claimant as the transfer fee.
3. In accordance with clause 2 of the transfer agreement stated that: “Any late payments under this Agreement shall be subject to penalty fee of 10% APR (annual percentage rate) of the amount past due at that time.”
4. On 30 June 2020, the Respondent sent an email to the Claimant, requesting a deadline extension to pay the transfer fee due to the decrease in economic activities as a result of the Covid-19 pandemic.
5. On 10 July 2020, the Claimant replied to the correspondence of the Respondent and invited it to comply with the financial obligations as per the terms stipulated in the transfer agreement in accordance with the basic legal principle of pacta sunt servanda or it would be entitled to exercise its legal rights including article 12bis of FIFA RSTP in case of a non-payment for more than 30 days starting from 30 June 2020.
6. On 27 October 2020, the Claimant put the Respondent in default of payment and granted a deadline of ten days for the Respondent to comply with its financial obligations.
7. On 27 October 2020, the Claimant lodged a claim against the Respondent in front of FIFA requesting payment of USD 575,000 as outstanding transfer fee, plus 5% interest p.a. as from 30 June 2020, as well as a contractual penalty of 10% of the due amount from the due date of 30 June 2020 until the date of effective payment.
8. In support of its claim, the Claimant held that despite several reminders, the Respondent failed to fulfil its financial obligations and that the payment was delayed for more than 30 days without a prima facie contractual basis.
9. In its reply, the Respondent stated that due to the current difficult economic situation worldwide caused by the Covid-19 virus pandemic, it is impossible to comply with the total payment due in a single exhibition.
10. Additionally, the Respondent submitted that as a result of the cancellation of competitions during the first half of 2020, the club is not receiving the initially planned income from the television companies, sponsors, as well as from the collections of match tickets. This according to the Respondent puts it in a financial situation beyond its forecast, with no certainty of being able to comply with all the commitments, including the payment of the current debt.
11. Finally the Respondent proposed to pay the Claimant as follows:
- USD 100,000 no later than 28 February 2021;
- USD 100,000 no later than 31 March 2021;
- USD 100,000 no later than 30 April 2021;
- USD 100,000 no later than 3 May 2021;
- USD 100,000 no later than 30 June 2021;
- USD 75,000 no later than 31 July 2021.
II. CONSIDERATIONS OF THE PLAYERS' STATUS COMMITTEE
1. First of all, the Single Judge of the Players' Status Committee (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA by the Claimant on 11 November 2020. Furthermore, the Single Judge noted that the matter was submitted for decision on 23 March 2021. Taking into account the wording of art. 21 of the 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Single Judge recalled that in accordance with art. 3 par. 1 of the Procedural Rules in combination with art. 23 par. 1 and art. 22 lit. c) of the 2020 edition Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) he is, in principle, competent to deal with employment-related disputes between two clubs of an international dimension.
3. In continuation, the Single Judge analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 11 November 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.
4. The competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter. Subsequently, the Single Judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Single Judge emphasized 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. To start with the Single Judge noted that on 20 July 2018, the parties concluded a transfer agreement pursuant to which the Respondent agreed to pay the Claimant USD 575,000 on or before 30 June 2020 to the Claimant as the last instalment of the total transfer fee.
6. Furthermore, the Single Judge noted that clause 2 of the transfer agreement stated that: “Any late payments under this Agreement shall be subject to penalty fee of 10% APR (annual percentage rate) of the amount past due at that time.”
7. In continuation, the Single Judge took note of the Claimant’s request for payment of USD 575,000 plus 5% interest p.a. as from the due date of 30 June 2020 and an annual 10% late payment penalty as from 30 June 2020.
8. The Single Judge also noted that the outstanding transfer fee of USD 575,000 claimed by the Claimant was not contested by the Respondent.
9. First of all, the Single Judge turned his attention to the Respondent’s submission that it had not been able to meet its contractual obligations as a result of the effects of the COVID-19 pandemic on its financial situation.
10. The Single Judge recalled that the FIFA COVID FAQ established that the question whether or not a force majeure situation (or its equivalent) exists in the country or territory is a matter of fact and law in each specific country, which must be addressed on a case-by-case basis vis-à-vis the relevant laws that are applicable to any specific employment or transfer agreement. However, the Bureau did not determine that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure.
11. In this sense, the Single Judge noted that the argumentation brought forward by the Respondent cannot be upheld, given the fact that the club has not substantiated its position and/or brought forward any evidence in respect to the alleged existence of a force majeure.
12. Therefore, the Single Judge concluded that the main amount of USD 575,000 should be paid by the Respondent to the Claimant.
13. In regards to the Claimant’s request for 5% interest p.a. on the amount of USD 575,500 plus the annual percentage rate of 10% as penalty fee, the Single Judge pointed out that the 10% penalty as agreed upon in clause 2 of the transfer agreement appeared in fact to be a clause awarding interest in case of late payment.
14. In view of the above, the Single Judge proposed that instead of awarding a penalty of 10% of the outstanding amount, the Claimant shall be awarded an interest of 10% p.a. as of 1 July 2020 on the outstanding amount.
15. In conclusion, the Single Judge decided that the Claimant be awarded the outstanding transfer fee of USD 575,000, plus 10% interest p.a. as of 1 July 2020.
16. Furthermore, the Single Judge noted the Claimant’s request that the Respondent be sanctioned in accordance with article 12bis of the Regulations and the fact that on 27 October 2020, the Claimant put the Respondent in default of payment and granted a deadline of ten days for the Respondent to comply with its financial obligations in accordance with 12bis.
17. In view of the above, the Single Judge agreed that the Claimant fulfilled the requirements under 12bis and as a result decided that a warning be imposed on the Respondent.
18. In continuation, 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 the proceedings before the Players’ Status Committee, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings.
19. In this respect, the Single Judge referred to the COVID-19 Football Regulatory Issues FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered. Therefore, bearing in mind that the present claim was lodged on 11 November 2020, the Single Judge established that the present decision shall be rendered without costs.
20. The Single Judge concluded his deliberations in the present matter by establishing that the claim of the Claimant is partially accepted.
21. Furthermore, taking into account the consideration under number II./3. above, the Single Judge 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 Single Judge 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 Single Judge decided that, in the event that the Respondent does not pay the amounts 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 club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
24. Finally, the Single Judge 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 PLAYERS' STATUS COMMITTEE
1. The claim of the Claimant, Trabzonspor Kulubu, is partially accepted.
2. The Respondent, Tijuana Xoloitzcuintles de Caliente, has to pay the Claimant the total amount of USD 575,000 as outstanding transfer fee plus 10% annual interest as from the due date of 1 July 2020 until the date of effective payment.
3. A warning is imposed on the Respondent.
4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.
5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to firstname.lastname@example.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
6. In the event that the amount due, plus interest as established 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 following consequences shall arise: 1.
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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.
In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7. The present claim is rendered without costs.
For the Players' Status Committee:
Emilio García Silvero
Chief Legal & Compliance Officer
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.
NOTE RELATED TO THE PUBLICATION:
FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).
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