F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2016-2017) – fifa.com – atto non ufficiale – Decision 8 May 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 8 May 2017,

by

Raymond Hack (South Africa)

Single Judge of the Players’ Status Committee,

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 arisen between the parties

and relating to the player, Player E.

Player E

I. Facts of the case

1. On 22 June 2016, the Club of Country B, Club A, (hereinafter: the Claimant), and the Club of Country D, Club C, (hereinafter: the Respondent) concluded a transfer agreement (hereinafter: the agreement) regarding the transfer of the player, Player E, (hereinafter: the player) from the Claimant to the Respondent. The agreement was also signed by the player.

2. In this respect, the Respondent had to pay, inter alia, to the Claimant EUR 30,000 on 11 July 2016 (hereinafter: the first instalment) and EUR 30,000 on 1 June 2017 (hereinafter: the second instalment) as transfer fee.

3. According to art. 6 of the agreement, the player acknowledged that “the club [i.e. the Claimant] has paid salary and other benefits to the Player over and above his contractual entitlements effective the date of his transfer to Club C”.

4. “On the basis of the above paragraph [i.e. art. 6 of the agreement], Club C agrees (and the Player consents) to deduct an amount of € 5,245 from the first salary instalment due to the Player under his employment agreement with Club C and forward it to Club A fortwith” (cf. art. 7 of the agreement).

5. On 29 November 2016, the Claimant lodged a claim with FIFA against the Respondent for breach of contract and requested from the latter the payment of EUR 35,245, corresponding to the first instalment, plus the amount which was deductible from the player’s first salary as per art. 7 of the agreement. In addition, the Claimant requested from the Respondent the payment of 5% interest per year on the amount of EUR 30,000 from 12 July 2016 and on the amount of EUR 5,245 from 30 July 2016, respectively.

6. Equally, the Claimant requested from the Respondent the reimbursement of all, or of at least a part of the costs incurred by “bringing this proceedings”.

7. In its response on 23 January 2017, the Respondent rejected the Claimant’s claim in its entirety.

8. According to the Respondent, “due to unexpected poor performance on the field and also bad attitude off the field”, its contractual relationship with the player was terminated on 10 November 2016.

Player E

9. In view of the above and since it had not benefited from the player’s services, the Respondent deemed that the amount of EUR 30,000 was not payable to the Claimant.

10. In addition, the Respondent held that the sum of EUR 5,245 due as per art. 7 of the agreement could not be paid to the Claimant because of “the jurisdiction of FIFA Dispute Resolution Chamber. Such deduction of salary payment can not be justified (..).”

11. According to the employment contract concluded between the player and the Respondent that was uploaded in TMS, valid from 29 July 2016 until 31 May 2018, the player was inter alia entitled to receive from the Respondent, for the 2016-2017 season, EUR 240,000 as follows: EUR 40,000 “as transfer advance payment on the date of signing the contract”; EUR 10,000 on 31 July 2016 and EUR 190,000 in 10 monthly equal installments of EUR 19,000 each between 31 August 2016 and 31 May 2017. The employment contract was signed on 23 and on 29 July 2016 respectively.

II. Considerations of the Single Judge 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 which Procedural Rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 29 November 2016, the Single Judge of the Players’ Status Committee concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber is applicable to the present matter (cf. art. 21 of the Procedural Rules).

2. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the 2015 and 2016 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 29 November 2016. In view of the foregoing, the Single Judge concluded that the 2016 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.

Player E

3. Subsequently, with regard to his competence, the Single Judge confirmed that on the basis of art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. f) of the Regulations he is competent to deal with the matter at stake, which concerns a dispute between two football clubs affiliated to two different associations.

4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the facts of the dispute, the arguments of the parties as well as the documentation contained in the file.

5. In doing so and to begin with, the Single Judge noted that, on 22 June 2016, the Claimant and the Respondent had concluded a transfer agreement (hereinafter: the agreement) which provided for the Claimant to receive from the Respondent EUR 30,000 on 11 July 2016 (hereinafter: the first instalment) and EUR 30,000 on 1 June 2017 (hereinafter: the second instalment) as transfer fee. Furthermore, the Single Judge remarked that, in accordance with art. 7 of the agreement, the Respondent agreed and the player accepted to deduct the amount of EUR 5,245 from his first salary with the Respondent and forward it to the Claimant.

6. In continuation, the Single Judge took note that, in its claim to FIFA, the Claimant had requested from the Respondent the payment of EUR 30,000, corresponding to the first installment, plus the amount that was deducible from the player’s salary, i.e. EUR 5,245.

7. Equally, the Single Judge observed that, for its part, the Respondent had rejected the claim of the latter arguing that its contractual relationship with the player had already been terminated on 10 November 2016 and that, therefore, no transfer fee was payable to the Claimant. In addition, the Single Judge also noticed that from the Respondent’s point of view, no amount could be deducted from the player’s salary in accordance with FIFA’s jurisprudence.

8. With the aforementioned considerations in mind, the Single Judge was eager to emphasize that the parties to the dispute had concluded a contract which clearly stipulated the obligation of the Respondent to pay a certain amount to the Claimant as transfer fee for the player and which did not include any provision indicating that such payment would be conditional to the player remaining employed by the Respondent during a specific period of time. Equally, the Single Judge recalled that the obligation of the Respondent to pay EUR 5,245 to the Claimant out of the first salary of the player had been contractually agreed between the parties to the dispute and that the player himself had given his written consent to such payment by signing the transfer agreement.

Player E

9. In the same context and for the sake of good order, the Single Judge was additionally eager to emphasize that, in any case, the first instalment as well as the player’s first salary (cf. point I.11 above) had fallen due before the termination of the contractual relationship between the Respondent and the player.

10. Hence, considering all of the aforementioned as well as taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith and bearing in mind that it is undisputed that the sum of EUR 35,245 due as per the transfer agreement had not yet been paid by the Respondent to the Claimant, the Single Judge resolved that the Respondent, in order to fulfil its obligations established in the document in question has to pay to the Claimant the outstanding amount of EUR 35,245.

11. In continuation and taking into account the Claimant’s request for the payment of default interest, the Single Judge remarked that the transfer agreement did not include a clause related to the payment of interest in case of a delay in the payment of the amounts due. Furthermore, the Single Judge took into account the fact, that as per the employment contract concluded between the Respondent and the Claimant, the first salary of the player was to be paid on 31 July 2016.

12. In view of the foregoing and in accordance with his well-established jurisprudence concerning the payment of interest, the Single Judge decided that the Respondent has to pay to the Claimant interest at a rate of 5% p.a. on the amount of EUR 35,245 as from 1 August 2016.

13. Finally and with regard to the last part of the Claimant’s claim, i.e. his request relative to the payment of the costs incurred, the Single Judge referred to art. 18 par. 4 of the Procedural Rules and stressed that no procedural compensation shall be awarded in proceedings of the Players’ Status Committee and the DRC. As a result, the Single Judge established that this last request of the Claimant has to be rejected for lack of legal basis.

14. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and the Respondent has to pay to the Claimant the amount of EUR 35,245, plus 5% interest p.a. on said amount from 1 August 2016.

15. Lastly, 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, including the Single Judge, 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 (cf. art. 18 par. 1 of the Procedural Rules).

Player E

16. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

17. Furthermore and 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. Consequently and taking into account that the total amount at dispute in the present matter is lower than CHF 50,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

18. In conclusion, and considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore and that the present case did not show particular factual difficulties or specific legal complexities, the Single Judge determined the costs of the current proceedings to the amount of CHF 3,000.

19. Consequently, the Respondent has to pay the amount of CHF 3,000 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, Club A, within 30 days as from the date of notification of the present decision, the total amount of EUR 35,245, plus 5% interest p.a. on the said amount from 1 August 2016 until the date of effective payment.

3. If the aforementioned sum, plus interest as established above, 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.

Player E

4. Any other claims lodged by the Claimant, Club A, are rejected.

5. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision, as follows:

5.1. The amount of CHF 2,006 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

5.2. The amount of CHF 994 has to be paid directly to the Claimant, Club A.

6. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 5.2. are to be made and to notify the Players’ Status Committee of every payment received.

*****

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).

Player E

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