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 22 November 2016

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 November 2016,

by

Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the club,

Club A, from country B

as Claimant

against the club,

Club C, from country D

as Respondent

regarding a contractual dispute between the parties

relating to the Player E

Player E

I. Facts of the case

1. On 28 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 loan agreement regarding the loan of the Player E (hereinafter: the player), from the Claimant to the Respondent.

2. In accordance with the loan agreement, the Respondent undertook to pay to the Claimant inter alia a loan fee amounting to EUR 1,300,000, payable in five instalments of EUR 300,000, EUR 250,000, EUR 250,000, EUR 250,000 and EUR 250,000 on or before 15 September 2015, 30 November 2015, 30 January 2016, 30 March 2016 and 30 May 2016 respectively.

3. On 15 April 2016, the Claimant lodged a claim against the Respondent before FIFA asking that the latter be ordered to pay the amount of EUR 500,000, corresponding to the second and third instalments of the loan fee agreed upon in the loan agreement, plus 5% interest p.a. on EUR 250,000 as of 1 December 2015 and on EUR 250,000 as of 31 January 2016 respectively, and that the Respondent be ordered to reimburse the advance of costs paid by the Claimant and to “bear any and all additional costs of the proceedings that the Players’ Status Committee may deem appropriate to levy“.

4. On 1 July 2016, after the investigation phase had been concluded without reply from the Respondent, the latter informed of the payment of EUR 750,000 to the Claimant.

5. On 29 July 2016, the Claimant acknowledged receipt of EUR 749,965, paid on 24 June 2016, and consequently requested the payment of EUR 12,261, being the alleged interests accrued from the due dates of the second and third instalments of the loan fee until the effective payment date.

6. On 9 August 2016, the Claimant was informed that the obligation to pay interest did not appear to be provided for in the relevant loan agreement and that it did not appear to be in the scope of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations).

7. On 12 August 2016, the Claimant requested a formal decision of the Players’ Status Committee on the basis of art. 1 par. 1 and 22 lit. f) of the Regulations as well as art. 104 of the Swiss Code of Obligations.

8. Lastly, the Claimant assessed that FIFA’s denial of justice in a case where the claimant demands only non-contractual interest would eventually result in clubs only honouring the agreements right before FIFA passes a formal decision in order to escape sanctions. In the Claimant’s opinion, denial of claims for interest would go against the spirit of art. 12bis of the Regulations, aimed to protect the clubs acting in bona fide and would violate such bona fide clubs’ right to justice and fair and equal treatment.

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Player E

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 15 April 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 15 April 2015. In view of the foregoing, the Single Judge concluded that the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand.

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 the parties had concluded a loan agreement on 28 August 2015 for the loan of the player from the Claimant to the Respondent for the total amount of EUR 1,300,000 payable in five instalments of EUR 300,000, EUR 250,000, EUR 250,000, EUR 250,000 and EUR 250,000 on or before 15 September 2015, 30 November 2015, 30 January 2016, 30 March 2016 and 30 May 2016 respectively.

6. Having established the aforementioned, the Single Judge took note that the Claimant maintained that it was entitled to receive from the Respondent the amount EUR 250,000, before 30 November 2015 as well as EUR 250,000 before 30 January 2016.

7. Furthermore, the Single Judge remarked that the Claimant amended its initial claim and informed FIFA that the Respondent had eventually paid the requested principal amount on 24 June 2016 and, therefore, it requested only the payment of EUR 12,261 as the interest accrued from the due dates of each of the instalments until the date of effective payment.

8. In continuation, the Single Judge observed that, the Respondent failed to present its reply to the claim as to the substance and that it limited its reply to inform of a

Player E payment of EUR 750,000 after the investigation phase had been concluded. In this way, the Single Judge considered that the Respondent renounced its right of defence. Consequently, the Single Judge referred to art. 9 par. 3 of the Procedural Rules, according to which he shall take a decision upon the basis of the documents already on file.

9. Having analysed the argumentation and documentation on file in the present matter, the Single Judge first concluded that it remained undisputed that the payment corresponding to the second and third instalments was made on 24 June 2016 and, therefore, after the due date stipulated in the agreement, i.e. on 30 November 2015 for and on 30 January 2016 respectively.

10. 10. In this context, the Single Judge referred to the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith. In particular, the Single Judge underscored that the loan fee was paid before the present decision was passed and that the parties did not contractually agree in the loan agreement for any interest whatsoever to be paid in case of late payment of any instalments stipulated in the loan agreement. Therefore, the Single Judge held that the Claimant’s request to be awarded interest over amounts that are no longer outstanding is lacking legal basis.

11. In light of the foregoing, and based on the constant practice of the Players’ Status Committee, the Single Judge decided to reject the Claimant’s request.

12. 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 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).

13. In respect of the above, taking into account that the Claimant’s claim is rejected, the Single Judge concluded that the Claimant has to bear the costs of the current proceedings before FIFA.

14. 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 does not exceed CHF 50,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

15. 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 5,000.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Club A, is rejected.

Player E

2. The final costs of the proceedings in the amount of 5,000 are to be paid by the Claimant to FIFA. Given that the Claimant has already paid the amount of 5,000 as advance of costs at the start of the present proceedings, the Claimant does not have to pay any additional amount.

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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

Marco Villiger

Deputy Secretary General

Encl. CAS Directives