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 – Decision8 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 between the parties relating to the Player E of country B
Player E of country B
I. Facts of the case
1. On 26 August 2015, the club of country B, Club A (hereinafter: the Claimant), and the Club of country D, Club C (hereinafter: the Respondent), signed a transfer agreement according to which the Respondent agreed to pay the Claimant the amount of USD 150,000 – for the permanent transfer of the player of Country B, Player E (hereinafter: the player) – by no later than 14 September 2015.
2. On 16 October 2015, the Claimant put the Respondent in default of payment of the transfer compensation, granting the latter a deadline of fifteen days to remedy the default.
3. On 22 June 2016, the Claimant lodged a complaint before FIFA against the Respondent, explaining that the latter had still not paid the transfer compensation agreed for the permanent transfer of the player.
4. As a result, the Claimant claimed from the Respondent the payment of USD 150,000 as transfer compensation, plus 5% interest p.a. from the due date of payment.
5. In its statement of defence, the Respondent confirmed having signed the said transfer agreement with the Claimant, as well as an employment contract with the player valid from 26 August 2015 until 30 June 2018. The Respondent explained however that it was deceived by the Claimant upon the player’s skills insofar as it hastily signed the employment contract with the player without assessing his skills.
6. In this context, and in view of the alleged poor performance of the player, the Respondent stated that it terminated by mutual consent the contractual relationship with the player on 17 December 2015.
7. On the same date, the Respondent concluded with the player’s agent a “Protocole d’accord”, aiming to annul the debt towards the Claimant due to the amicable termination of the employment contract with the player.
8. Therefore, the Respondent requested an amicable resolution of the present affair.
Player E of country B
9. In its replica, the Claimant rejected the Respondent’s line of argumentation and particularly underlined that it is unaware of any tripartite agreement – i.e. between the Claimant, the Respondent and the player – that warrants any review of the transfer compensation. The Claimant insisted on not being a party to the settlement agreement concluded between the player, the player’s agent and the Respondent.
10. Moreover, the Claimant stressed that the alleged player’s agent had no power of attorney in order to act on its behalf. In this respect, the Claimant provided an exchange of e-mails dated 12 January 2016 between the Respondent and the said player’s agent, by means of which the Respondent requested explanations regarding the present matter to the player’s agent and the latter insisted on having assisted the player in the amicable termination of the employment contract between the Respondent and the player, and not having represented the Claimant.
11. In its duplica, the Respondent upheld its previous position and requested a review of the transfer compensation in due consideration of the period effectively spent by the player with the Respondent, i.e. allegedly four months.
II. Considerations of the Single Judge of the Players’ Status Committee
1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed which edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) were applicable to the matter at hand. In this respect, he referred to art. 21 of the Procedural Rules as well as to the fact that the present matter was submitted to FIFA on 22 June 2016. Therefore, the Single Judge concluded that the 2015 edition of the Procedural Rules is applicable to the matter at hand.
2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players is 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 Regulations on the Status and Transfer of Players and, on the other hand, once again to the fact that the claim was lodged in front of FIFA on 22 June 2016. In view of the foregoing, the Single Judge concluded that the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand.
Player E of country B
3. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 and par. 2 of the Procedural Rules in connection with art. 23 par. 1 and par. 3 as well as art. 22 lit. f) of the Regulations, he was competent to deal with the present matter since it concerned a dispute between clubs affiliated to two different associations.
4. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 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. In this respect, the Single Judge noted that, on 26 August 2015, the parties concluded a contract for the definitive transfer of the player from the Claimant to the Respondent, according to which the latter was to pay a transfer fee in the amount of USD 150,000 to the Claimant by 14 September 2015.
6. Furthermore, the Single Judge reverted to the submissions of the parties and underlined, in particular, that the Respondent acknowledged having signed the relevant transfer agreement as well as the employment contract with the player, which was apparently terminated by mutual consent.
7. In addition, the Single Judge observed that, in view of the relevant amicable termination of the contract with the player, the Respondent then concluded a “Protocole d’accord” aiming at annulling the debt towards the Claimant.
8. At this stage, the Single Judge referred to art. 12 par. 3 of the Procedural Rules which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof.
9. In this regard, the Single Judge pointed out that the relevant “Protocole d’accord” did not bear the signature of the Claimant and was thus solely concluded between the Respondent and the player’s agent, as indicated on the title above the signature. Moreover, the Single Judge highlighted that the Respondent did not provide any documentary evidence as to a possible power of attorney granted by the Claimant to the said players’ agent in order to represent him to sign the relevant “Protocole d’accord” on its behalf. Consequently, enshrining the said “Protocole d’accord” would violate the principle of res inter alios acta, which holds that a contract cannot adversely
Player E of country B affect the rights of one who is not a party to the contract. Therefore, the Single Judge concluded that the “Protocole d’accord” could not annul the debt of the Respondent towards the Claimant.
10. In view of the above and in accordance with the general principle of pacta sunt servanda – which in essence means that agreements must be respected by the parties in good faith –, the Single Judge considered that the Respondent must fulfil the obligations it entered into with the Claimant by means of the transfer agreement signed between the parties. Consequently, the Single Judge decided that the Respondent must pay to the Claimant the outstanding transfer compensation in the amount of USD 150,000.
11. For the sake of completeness and in relation to the Respondent’s statement that the payment of the transfer compensation to the Claimant, if any, should be made in due consideration of the period effectively spent by the player in the club, the Single Judge stressed out that the amicable termination of the employment contract of the player was decided by the player and the Respondent, without the Claimant taking part in the relevant amicable settlement. Bearing in mind the above, the Single Judge was of the opinion that such decision should not have any impact on the financial obligations set forth between the Claimant and the Respondent as per the transfer agreement. Therefore, the Single Judge was convinced that the amount of USD 150,000 should be paid by the Respondent to the Claimant, irrespective of the time effectively spent by the player with the Respondent.
12. With regard to the Claimant’s request for interest and in line with the well-established jurisprudence of the Players’ Status Committee, the Single Judge granted interest for late payment at a rate of 5% p.a. on the aforementioned amount as of 15 September 2015.
13. At last, 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. The relevant provision further states that 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).
14. In respect of the above, and taking into account that the Claimant’s claim is accepted, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA.
Player E of country B
15. 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. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is USD 150,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.
16. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success of the claim, the Single Judge decided that the amount of CHF 10,000 has to be paid by the Respondent.
III. Decision of the Single Judge of the Players’ Status Committee
1. The claim of the Claimant, Club A, is accepted.
2. The Respondent, Club C, has to pay to the Claimant, Club A, within 30 days as of the date of notification of the present decision, the total amount of USD 150,000, plus interest at a rate of 5% per year on the said amount as of 15 September 2015 until the date of effective payment.
3. If the aforementioned amount, 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.
4. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent, Club C, within 30 days as from the notification of the present decision as follows:
4.1 The amount of CHF 7,000 has to be paid directly 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
Player E of country B
4.2 The amount of CHF 3,000 has to be paid directly to the Claimant, Club A.
5. 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 4.2 are to be made and to notify the Players’ Status Committee of every payment received.
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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