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 9 March 2021
Decision of the
Single Judge of the PSC
passed on 9 March 2021
regarding a dispute concerning the transfer of the player Youssoufou Niakate
José Luis Andrade (Portugal), Single Judge of the PSC
Royal Union Saint Gilloise, Belgium
Represented by Mr Kristof de Saedeleer
Al-Wehda Sport Club, Saudi Arabia
I. FACTS OF THE CASE
1. In 19 July 2019, the Claimant and the Respondent concluded a transfer agreement (hereinafter: “the agreement”) for the definitive transfer of the player, Youssoufou Niakate (hereinafter: “the player”), from the Claimant to the Respondent involving the payment of EUR 2,000,000 in 4 instalments as follows:
• EUR 1,000,000 on 5 August 2019;
• EUR 400,000 on 31 December 2019;
• EUR 300,000 on 30 June 2020;
• EUR 300,000 on 31 October 2020.
2. On 30 June 2020, the term for the payment of the third instalment expired.
3. Therefore, by notice dated 4 August 2020, the Claimant put in default the Respondent and granted a term of 11 days, i.e. until 15 August 2020 in order to pay the overdue amount, but to no avail.
4. On 26 August 2020, the Claimant sent a new correspondence to the Respondent stating, “Therefore, we have no other choice to launch a formal complaint with FIFA immediately and demand payment of the third instalment, all interests, the costs and to impose sanctions according article 12bis RSTP (such as a fine, transfer ban, …)”.
5. The Claimant stated being ignored by the Respondent in spite of the several requests for payment.
6. in addition to the request for payment of the outstanding amount of EUR 300,000 plus 5% interest p.a. as of 30 June 2020, the Claimant invoked the application of art. 12bis of FIFA RSTP, i.e. the imposition of sporting sanctions on the Respondent.
7. The Claimant argued that based on the legal principle of pacta sunt servanda, the Respondent should have paid the outstanding transfer fee. The Claimant added having sent to the Respondent a proper invoice and a formal notice, to no avail.
8. The Respondent did not provide any position on the dispute at hand, hence waiving its right of defense.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC
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, he took note that the present matter was submitted to FIFA on 4 September 2020.
2. Consequently, the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: “the Procedural Rules”) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
3. Subsequently, the Single 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 February 2021), and considering that the present claim was lodged on 4 September 2020, the August 2020 edition of said Regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.
4. Furthermore, the Single Judge referred to art. 3 par. 2 and par. 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, he is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations.
5. 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.
6. In this respect, the Single Judge first observed that the Respondent did not submit its position to the claim lodged against it by the Claimant, despite having been asked to do so by FIFA. Therefore, the Single Judge concluded that, in this way, the Respondent had renounced to its right of defense and, thus, it had not formally contested the allegations of the Claimant.
7. Bearing in mind the aforementioned, the Single Judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the allegations and documents submitted by the Claimant.
8. In continuation, the Single Judge acknowledged that the parties concluded the agreement related to the transfer of the player from the Claimant to the Respondent and that according to said agreement the Respondent undertook to pay to the Claimant a transfer fee amounting to EUR 2.000,000 in four instalments.
9. The Single Judge recalled that, on 4 September 2020, the Claimant lodged the present claim against the Respondent before FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of EUR 300,000 corresponding to the third instalment, which fell due on 30 June 2020.
10. The Single Judge further observed that the Claimant asked to be awarded 5% interest p.a. as of 30 June 2020 until the date of effective payment.
11. In this context, the Single Judge took particular note of the fact that, on 4 August 2020, the Claimant put the Respondent in default of payment of the aforementioned instalment, setting a time limit of 11 days in order to remedy the default.
12. 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 obligation(s).
13. Subsequently, the Single Judge reiterated that the Respondent failed to present its position despite of having the opportunity to do so.
14. Having said this, the Single Judge recalled that, in accordance with the agreement, the Respondent was obliged to pay to the Claimant the amount of EUR 2,000,000 in four instalments being the third one due on 30 June 2020.
15. 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.
16. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit EUR 300,000 to the Claimant.
17. 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.
18. 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 300,000.
19. Furthermore, the Single Judge took note the Claimant´s request for interest at rate of 5% per annum from 30 June 2020. In this respect, and in accordance with the well-established jurisprudence of the Players´ Status Committee, the Single Judge decided to award the Claimant interest at the rate of 5% p.a. on the relevant instalment as of the respective due date, i.e. 1 July 2020.
20. In continuation, taking into account the consideration under number II./17. 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.
21. 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.
22. 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.
23. 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.
24. 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.
25. 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.
26. 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.
27. 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 according to which 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.
28. Moreover, the Single Judge referred to art. 18 par. 1 i. of the Procedural Rules according to which “For any claim or counter-claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), no procedural costs shall be levied”.
29. On that basis, the Single Judge decided that the present decision is rendered without imposing any procedural costs.
III. DECISION OF THE SINGLE JUDGE OF THE PSC
1. The claim of the Claimant, Royal Union Saint Gilloise, is partially accepted.
2. The Respondent, Al-Wehda Sport Club, has to pay to the Claimant, the amount of EUR 300,000 as outstanding amount plus 5% interest p.a. as from 1 July 2020 until the date of effective payment.
3. Any further claims of the Claimant are rejected.
4. A warning is imposed on the Respondent.
5. 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.
6. 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).
7. 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.
8. This decision is rendered without costs.
For the Single Judge of the PSC:
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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