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 28 September 2016

Decision of the

Single Judge

of the

Players’ Status Committee

passed in Zurich, Switzerland, on 28 September 2016,

by

Geoff Thompson (England)

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

I. Facts of the case

1. On 5 August 2013, the Club of Country B, Club A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded an agreement for the loan of Player E (hereinafter: the player), from the Claimant to the Respondent from 5 August 2013 until 30 June 2014.

2. Clause 5 of the agreement stipulated that, for the loan of the player, the Respondent had to pay to the Claimant the amount of EUR 50,000, payable in five equal instalments as follows:

- EUR 10,000 until 5 August 2013;

- EUR 10,000 until 5 September 2013;

- EUR 10,000 until 5 October 2013;

- EUR 10,000 until 5 November 2013, and;

- EUR 10,000 until 5 December 2013.

3. On 4 September 2015, the Claimant lodged a claim before FIFA against the Respondent requesting EUR 50,000 for the alleged outstanding loan fee, plus 5% interest p.a. as from the due dates, the legal expenses and the attorney’s fees.

4. In its reply, the Respondent rejected owing something to the Claimant and stated that the present claim “does not have any legal base”.

***

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 whether which edition of the Regulations Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber is applicable in the matter at stake. In this respect, considering that the present matter was submitted to FIFA on 4 September 2015, the Single Judge concluded that the 2015 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).

2. Subsequently, 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 to art. 26 par. 1 of the 2015 edition of the Regulations on the Status and Transfer of Players and again to the fact that the claim was lodged with FIFA on 4 September 2015. In view of this, the Single Judge concluded that the 2015 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) was applicable to the matter as to the substance.

3. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 f) of the Regulations, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to different associations.

4. His competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In doing so and first of all, the Single Judge emphasized 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 context, the Single Judge acknowledged that, on 5 August 2013, the parties had concluded an agreement for the loan of the player from the Claimant to the Respondent from 5 August 2013 until 30 June 2014. In exchange, the Respondent had to pay to the Claimant a loan fee in the total amount of EUR 50,000 in five equal instalments of EUR 10,000 on 5 August 2013, 5 September 2013, 5 October 2013, 5 November 2013 and 5 December 2015 respectively.

6. The Single Judge further noted that, on 4 September 2015, the Claimant lodged a claim against the Respondent in relation to the allegedly outstanding loan fee in the amount of EUR 50,000. Equally, the Single Judge noted that the Respondent, for its part, rejected in full the Claimant’s claim by stating that it does not owe anything to the Claimant and that the latter’s claim lacks legal basis.

7. Having duly examined the argumentation and documentation put forward by both parties, the Single Judge first recalled the content of 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. In this regard, the Single Judge was eager to emphasise that the Respondent had not presented any evidence whatsoever which would have indicated that it had fulfilled its obligations as per the loan agreement dated 5 August 2013. Consequently, the Single Judge determined that, in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent has to comply with its contractual obligations towards the Claimant.

8. Having said that, the Single Judge referred to art. 25 par. 5 of the Regulations in connection with the Procedural Rules, which stipulates that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute and that the application of this time limit shall be examined ex officio in each individual case.

9. On account of the above considerations, and considering that the Claimant lodged its claim on 4 September 2015, the Single Judge decided that the first instalment of EUR 10,000, which fell due on 5 August 2013, is barred by the statute of limitations.

10. In view of all of the above, the Single Judge concluded that the Respondent has to pay to the Claimant the amount of EUR 40,000 in compliance with clause 5 of the loan agreement.

11. In continuation, the Single Judge turned his attention to the Claimant’s the request to be awarded 5% interest per year for the late payment of the loan fee. In this respect, the Single Judge referred to the longstanding practice of the Players’ Status Committee and concluded that the Respondent has to pay 5% interest per year on EUR 10,000 as of 6 September 2013, on EUR 10,000 as of 6 October 2013, on EUR 10,000 as of 6 November 2013 and on EUR 10,000 as of 6 December 2013, until the date of effective payment.

12. Having decided on the aforementioned and turning his attention to the Claimant’s request related to the reimbursement of the costs of his legal defence, the Single Judge referred to art. 18 par. 4 of the Regulations in accordance with which no procedural compensation shall be awarded in proceedings before the Players’ Status Committee and the DRC. As a consequence, the Single Judge decided that this part of the Claimant’s claim had to be rejected for lack of legal basis.

13. 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 which states that 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.

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 is EUR 50,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

15. In conclusion, and in view of the circumstances of the present matter, the Single Judge determined that the costs of the current proceedings in the amount of CHF 10,000 shall be borne by the Respondent.

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

1. The claim of the Claimant, Club A, is partially accepted insofar as it is admissible.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 40,000, plus 5% interest p.a. as follows:

- on the amount of EUR 10,000, as of 6 September 2013,

- on the amount of EUR 10,000, as of 6 October 2013,

- on the amount of EUR 10,000, as of 6 November 2013, and

- on the amount of EUR 10,000, as of 6 December 2013.

3. If the aforementioned sum plus interest 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. Any further claim lodged by the Claimant is rejected.

5. The final amount of costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent, within 30 days of notification of the present decision, as follows:

5.1. The amount of CHF 8,000 to FIFA to the following bank account:

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 2,000 to the Claimant.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances are to be made and to notify the Single Judge of 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

Marco Villiger

Deputy Secretary General

Encl. CAS Directives