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 26 January 2021
Decision of the
Single Judge of the PSC
passed on 26 January 2021
regarding a contractual dispute concerning the player KWABENA JUNIOR NKRUMAH
Johan van Gaalen (South Africa), Single Judge of the PSC
Spartans FC, Ghana
Represented by Mr Juan de Dios Crespo Pérez and Mr Alessandro Mosca
Extremadura UD, Spain
Represented by Mr Gaspar Romero
1. On 22 April 2019, the Claimant and the Respondent entered into a transfer agreement (hereinafter: ‘the agreement’) for the transfer of the player Kwabena Junior Nkrumah (hereinafter: ‘the player’) from the Ghananian club Spartans Football Club (hereinafter: the Claimant) to the Spanish club Extremadura UD (hereinafter: the Respondent) for a transfer compensation of EUR 100,000.
2. Pursuant to article 2 (price and method of payment) of the agreement, the parties agreed that the transfer compensation payment will be due and payable in two instalments as follows:
‘As economic consideration on the aforementioned rights, the price agreed by the parties is TWO HUNDRED THOUSAND EUROS 100,000 EUROS), the payments being distributed as follows:
- EUR 50 000 to be paid on July 31, 2019
- EUR 50 000 to be paid on December 31, 2019’.
3. The Respondent however failed to fulfil its financial obligations as stipulated in the agreement, by not paying the second instalment of EUR 50,000, on the due date of 31 December 2019.
4. On 24 March 2020, the Respondent sent the Claimant an email communication, requesting to postpone the payment due date to 30 June 2020, in light of the COVID-19 pandemic, which request was accepted by the Claimant in a letter dated 25 March 2020.
5. On 30 June 2020, the Respondent sent the Claimant another communication, advising that they were not able to make the due payment of 30 June 2020 and requested an additional 30-day extension.
6. On 3 August 2020, the Claimant sent a letter to the Respondent together with invoices, notifying the Respondent of its failure to pay the due amount by 31 July 2020 and requested immediate payment of the outstanding amount.
7. On 31 August 2020, the Claimant sent a final notice, to the Respondent, granting it a 10 days’ deadline to pay the outstanding amount of EUR 50,000, however to no avail.
8. On 15 September 2020, the Claimant lodged a claim against the Respondent before FIFA, claiming the total amount of EUR 50,000 plus 5% interest p.a. as from 31 December 2019, on the following basis:
a) the debt owed to the Claimant ought to be enforced by virtue of article 12bis of the FIFA Regulation on the Status and Transfer of Players; or in the alternative
b) that the Respondent has unilaterally breached the contract and violated the principle of pacta sunt servanda and ought to remunerate the Claimant appropriately pursuant to the terms of the transfer agreement.
9. In its reply to the claim, the Respondent, recognised the claim as lodged by the Claimant, however the Respondent expressed that payment of the second instalment was not intentionally delayed, and that the subsequent delays arose due to the unpredictable consequences of COVID-19.
10. In this regard, the Respondent indicated that they had to commence an arrangement with creditors before the Spanish courts, due to the material impossibility of satisfying its financial obligations.
11. The Respondent therefore request that the FIFA Players` Status Committee issue an award as follows:
a) dismissing the claim; and
b) appointing a new payment date of 31 July 2021 for payment of the second instalment on the basis of rebus sic stantibus doctrine.
12. However, in the event of FIFA issuing an award in favour of the Claimant; the Respondent request that no sanctions based on art. 12bis will be imposed.
13. Furthermore, the Respondent requests that no legal fees, FIFA PSC fees and/or costs shall be imposed on the Respondent.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC
1. First of all, the Single Judge of the PSC (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 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 of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasized that, in accordance with art. 24 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with disputes between clubs belonging to different associations.
3. In continuation, the Single Judge of the PSC 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 of the PSC 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 15 September 2020, the August 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.
4.With the above having been established, the Single Judge of the PSC entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.5.In this respect, the Single Judge noted that, on 22 April 2019, the parties concluded an agreement for the permanent transfer of the player, Kwabena Junior Nkrumah, from the Claimant to the Respondent, against payment of a transfer compensation in the amount of EUR 100,000, which was payable in two instalments, as follows:
-EUR 50,000 to be paid on 31 July 2019;
-EUR 50,000 to be paid on 31 December 2019.
6.Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA against theRespondent, maintaining that the Respondent has overdue payables towards it in the totalamount of EUR 50,000, corresponding to the second instalment due in respect of the agreedtransfer fee.
7.In this context, the Single Judge took particular note of the fact that, on 3 August 2020, theClaimant put the Respondent in default of payment of the aforementioned amount, setting atime limit of 10 days in order to remedy the default.
8.The Single Judge further noted that on 31 August 2020, the Claimant sent a final notice, to theRespondent, granting it again a time limit of 10 days in order to remedy the default.
9.Consequently, the Single Judge concluded that the Claimant had duly proceeded in accordancewith art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) musthave put the debtor club in default in writing and have granted a deadline of at least ten days forthe debtor club to comply with its financial obligation(s).
10.Subsequently, the Single Judge took into account that the Respondent, for its part, did not contestthe claim of the Claimant, hence the Claimant’s allegations remained uncontested.
11.Taking into account the documentation presented by the Claimant, the Single Judge concludedthat the Claimant had substantiated its claim pertaining to overdue payables with sufficientdocumentary evidence.
12.On account of the aforementioned considerations, the Single Judge established that theRespondent failed to remit the Claimant’s transfer fee in the amount of EUR 50,000,corresponding to the overdue second instalment under the transfer agreement.
13. 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.
14. 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 the total amount of EUR 50,000 plus 5% interest p.a. on the said amount as from 31 December 2019 until the date of effective payment.
15. In continuation, bearing in mind the foregoing considerations, 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.
16. 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, 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.
17. Furthermore, 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.
18. 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.
19. 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 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.
20. 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
21. Lastly, the Single Judge referred to the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which no procedural costs shall be levied for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), and determined given that the claim at hand was lodged on 3 July 2020, the decision shall be rendered free of costs.
III. DECISION OF THE SINGLE JUDGE OF THE PSC
1. The claim of the Claimant, Spartans FC, is accepted.
2. The Respondent, Extremadura UD, has to pay to the Claimant the following amount:
- EUR 50,000 plus 5% interest p.a. as from 31 December 2019 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 email@example.com, 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:
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 decision is rendered free of 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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