F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2019-2020) – fifa.com – atto non ufficiale – Decision 21 February 2020
Decision of the Single Judge
of the Players’ Status Committee
passed in Zurich, Switzerland, on 21 February 2020,
by
Roy Vermeer (The Netherlands)
Single Judge of the Players’ Status Committee,
on the claim presented by the club
NK Lokomotiva Zagreb, Croatia,
represented by Mr Jan Schweele
as “Claimant”
against the club
Club Academica de Coimbra, Portugal
as “Respondent”
regarding a contractual dispute arisen between the parties
and relating to the player Francisco Leonel Lima Silva Machado
I. Facts of the case
1. On 19 July 2017, the Croatian club, NK Lokomotiva Zagreb (hereinafter: the Claimant)
and the Portuguese club, Club Academica de Coimbra (hereinafter: the Respondent)
concluded a loan agreement over the temporary transfer of the player Francisco Leonel
Lima Silva Machado (hereinafter: the player) from the Claimant to the Respondent, for
the term as from 19 July 2017 until 30 June 2018.
2. In accordance with clause 2 of the loan agreement, the parties agreed on a total loan
fee in the amount of EUR 25,000, payable as follows:
- EUR 7,500 on 30 August 2017;
- EUR 5,000 on 31 October 2017;
- EUR 5,000 on 31 January 2018;
- EUR 7,500 on 31 March 2018.
3. In addition, pursuant to clause 4 of the loan agreement, it was also provided that the
Respondent would have a purchase option to definitely acquire the services of the
player for the amount of EUR 200,000. The relevant clause reads as follows:
“1. By this agreement [the Claimant] grants to [the Respondent] the
exclusive option to acquire the permanent registration of the Player from
[the Claimant] with effect until 31st May 2018 in accordance with the terms
of this agreement.
2. The Option shall be exercisable by [the Respondent] until 31st May 2018
and shall be validly exercised by [the Respondent] in the event that all of
the following conditions are satisfied: (a) [The Respondent] delivers to [the
Claimant] by courier or e-mail, written notice of its exercise of the purchase
Option; and (b) subject to the PLAYER expressly confirms this consent to
exercise of the [Respondent] Option by signing a valid professional contract
with the PLAYER, to take effect from 1st July 2018.
3. In the event that Option conditions are satisfied, the [Respondent] Option
shall have validly been exercised and [the Respondent] shall be required to
pay to [the Claimant] the net amount of € 200.000,00 € (two hundred
thousand euros) (the “Permanent Transfer Fee”), and 30.000,00 € (thirty
thousand euros) to LEIXOES, SAD, amount that includes the 15% of future
transfer right.
4. [The Claimant] agrees that the sum foreseen in paragraph 3 include all
and any compensation for the costs incurred by it in the training and
development of the PLAYER (training compensation and solidarity
mechanism) that might be due to [the Respondent].
5. If [the Respondent] does not exercise the call option, at the end of the
loan period (30 June 201[8]), the PLAYER must return to [the Claimant]
within 3 (three) days”.
4. On 19 April 2018, the parties further concluded an amendment to the loan agreement
(hereinafter: the amendment), in accordance with which the parties renegotiated the
financial terms of the loan agreement. In particular, the parties stipulated the
following:
“3. In the event that Option conditions are satisfied, the [Respondent] shall
have validly been exercised and [the Respondent] shall be required to pay
to [the Claimant] the net amount of € 200.000,00 (two hundred thousand
euros) (the “Permanent Transfer Fee”), in the following terms
a) Until the 30th April 2018, the amount of € 120.000,00 (one hundred
twenty thousand euros);
b) From June 2018 to January 2019, 8 instalments of € 10.000,00 (ten
thousand euros) each, that must be paid on the 20th day of each month.
c) If [the Respondent] doesn’t pay any of the instalments on the fixed
date, [the Claimant] has the right to demand a € 20.000,00 (twenty
thousand euros) penalization or demand the remaining instalments all
to be paid in 20 days, with a total penalization of € 30.000,00 (thirty
thousand euros).
6. If [the Claimant] is obliged to pay any amount to a third party regarding
the Loan Agreement or call option of [the player], [the Respondent] must
pay that amount to [the Claimant] until the limit of € 30.000,00 (thirty
thousand euros)”.
5. On 12 March 2019, the Claimant put the Respondent in default of payment of EUR
14,000, granting the latter a deadline until 31 March 2019 to remedy the default. By
means of the default letter, the Claimant further put the Respondent in default of
payment of EUR 30,000 “according to the ‘Amendment to Loan Agreement’ signed
19.04.2018”.
6. On 4 October 2019, the Claimant lodged a claim against the Respondent before FIFA,
requesting outstanding remuneration in the total amount of EUR 50,000, plus 5%
interest p.a. as from the due dates until the date of effective payment, broken down as
follows:
a) EUR 30,000 as per clause 4.6 of the amendment, concerning the 15% sell-on fee
allegedly paid by the Claimant to the Respondent;
b) EUR 20,000 corresponding to the penalty due as per clause 4.3. c) of the
amendment.
7. In its claim, the Claimant argued that the player’s loan transfer from the Claimant to
the Respondent triggered the payment of a sell-on fee payable by the Claimant to the
Portuguese club, Leixoes SC, in the amount of EUR 30,000. In this sense, the Claimant
held that, in accordance with the loan agreement and the amendment, the Respondent
undertook to pay to the Claimant the amount of EUR 30,000, should the Claimant be obliged to pay any amount to a third club as per the loan transfer of the player from
the Claimant to Leixoes SC. In support of its statements, the Claimant provided a copy
of the findings of the decision passed by the single Judge of the Players’ Status
Committee on 19 June 2019 (Ref. nr. 18-00548/sil), in accordance with which the
Claimant was condemned to pay to Leixoes SC the amount of EUR 15,000, plus interests.
8. Moreover, concerning the amount of EUR 20,000, requested by the Claimant as a
penalty due to the Respondent’s delay in the payment of EUR 14,000, the Claimant
maintained that “the Respondent failed to fulfil with the due transfer instalments
dates, with the Claimant having helpfully and good willed provided an option to make
the payments in 15 (fifteen) instalments, as per letter sent to the Respondent by the
Claimant in 12 March 2019. As so, as foreseen in clause 4, no. 3 line c), it is to be applied
the penalty of EUR 20,000 to the Respondent”.
9. For its part, the Respondent rejected the arguments raised by the Claimant and held
that all due instalments were fully paid by 25 January 2019. In this context, in support
of its arguments, the Respondent enclosed a proof of payment of the instalments of the
transfer fee in the amount of EUR 200,000.
10. Furthermore, the Respondent held that the Claimant never sent any default notice to
the Respondent.
11. Lastly, with regard to the claim lodged by Leixoes SC against the Claimant (cf. see point
I.7. above), the Respondent held that the Claimant had to pay that amount due to “late
payments” and not due to “the loan agreement celebrated between the claimant and
the respondent or the call option exercised by [the Respondent]”.
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 whether he was competent to deal with the matter at
hand. In this respect, he referred to art. 21 of the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber. Consequently, and
since the present matter was submitted to FIFA on 4 October 2019, the Single Judge
concluded that the 2019 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.
2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules
and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22
lit. c) of the June 2020 edition of the Regulations on the Status and Transfer of Players,
he is competent to deal with the matter at stake, which concerns a dispute with an
international dimension opposing a Croatian club and a Portuguese club.
3. In continuation, 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 June 2018
edition of the Regulations on the Status and Transfer of Players, and on the other hand,
to the fact that the present claim was lodged with FIFA on 4 October 2019. In view of
the foregoing, the Single Judge concluded that the October 2019 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is
applicable to the case at hand as to the substance (cf. art. 26 par. 1 and 2 of the
Regulations).
4. His competence and the applicable regulations having been established, and entering
into the substance of the matter, the Single Judge started his analysis by acknowledging
the facts of the case and the arguments of the parties as well as the documents
contained in the file. The Single Judge, however, 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. First of all, the Single Judge acknowledged that it was undisputed that, on 19 July 2017,
the Claimant and the Respondent concluded the agreement by means of which the
player was transferred on loan, from the Claimant to the Respondent, for the period
from 19 July 2017 until 30 June 2018.
6. In continuation, the Single Judge acknowledged that, according to clause 4 of the loan
agreement, the parties included an option for the permanent transfer of the player
against payment of a transfer compensation in the amount of EUR 200,000.
7. Equally, the Single Judge also noted that the parties, on 19 April 2018, concluded an
amendment to the loan agreement. In this respect, the Single Judge took note of the
fact that the amendment stipulated inter alia an option to transfer the player from the
Claimant to the Respondent on a permanent basis, in exchange of a payment in the
amount of EUR 200,000, payable as follows:
a) An amount of EUR 120,000, payable by 30 April 2018;
b) Eight monthly instalments of EUR 10,000 each, as from June 2018 until January
2019, to be paid “the 20th day of each month”.
8. In continuation, the Single Judge observed that the amendment contained a clause
providing that, in case the Respondent was in default of payment of “any of the
instalments”, the Claimant would be entitled to receive a penalty fee amounting to EUR
20,000.
9. Finally, the Single Judge noted that, pursuant to clause 4.6 of the amendment, the
parties also agreed upon the following: “If [the Claimant] is obliged to pay any amount
to a third party regarding the Loan Agreement or call option of [the player], [the
Respondent] must pay that amount to [the Claimant] until the limit of [EUR 30,000]”.
10. Subsequently, the Single Judge proceeded to analyse the claim and, first and foremost,
took note of the fact that the Respondent exercised the option for the permanent
transfer of the player. In this respect, the Single Judge noted that the Claimant
maintained that, in light of the provisions stipulated under clause 4.3 of the loan
agreement and clause 4.6. of the amendment, “the 15% sell-on clause (with the value
of 30.000,00 € - thirty thousand euros) became, on the transfer date, due to LEIXÕES,
SAD, by the Respondent”.
11. In addition, the Single Judge observed that the Claimant also provided a copy of the
findings of the decision passed by the Players’ Status Committee on 19 June 2019,
according to which the Claimant was condemned to pay to Leixoes SC the total amount
of EUR 15,000. In this respect, the Single Judge noted that the Claimant sustained that
“the payment of that amount was due by the Respondent, as per the Loan Agreement,
which has not fulfilled with the foreseen obligations (namely, the one to pay the
30.000,00 € due on the sell-on clause)”.
12. With the aforementioned considerations in mind, and after having analysed the
findings of the decision passed by the Players’ Status Committee on 19 June 2019, the
Single Judge firstly understood that the Claimant’s obligation to pay EUR 15,000 did not
derive from the 15% sell-on fee. Instead, the Single Judge observed that the attached
decision was rendered due to the fact that the Claimant delayed in the payment of an
instalment, and as a consequence, the Claimant was condemned to pay to Leixoes SC a
penalty in the amount of EUR 15,000. As a result, the Single Judge came to the
conclusion that the decision provided by the Claimant did not have any connection with
the matter at stake.
13. Notwithstanding the payment allegedly made to Leixoes SC, the Single Judge took into
consideration that the Claimant had not submitted any further evidence in this respect.
14. In view of all the above, the Single Judge referred to the aforementioned principle of
the burden of proof and decided to reject the Claimant’s claim to receive EUR 30,000 as
per clause 4.6 of the amendment.
15. Having established the above, the Single Judge went on to examine the second issue
raised in the present matter by the Claimant, i.e. whether the penalty clause stipulated
under clause 4.3.c) of the amendment had been triggered or not.
16. On the one hand, the Single Judge took note of the fact that the Claimant maintained
that “the Respondent failed to fulfil with the due transfer instalments dates” and
therefore, according to clause 4.3.c) of the amendment, the Respondent had to pay to
the Claimant the amount of EUR 20,000 as penalty fee. In this regard, the Single Judge
noted that the Claimant, in support of its allegations, maintained that it put the
Respondent in default on 12 March 2019.
17. Furthermore, with regard to the default letter allegedly sent to the Respondent, the
Single Judge focussed his attention to the Claimant’s allegation that the Respondent
delayed in paying the “the amount of € 14.000,00 by the 31 March, 2019”. In this
context, pursuant to clause 4 of the amendment, the Single Judge observed that the
Claimant requested to be awarded the penalty for late payment in the amount of EUR
20,000.
18. On the other hand, the Single Judge observed that, for its part, the Respondent
provided evidence of having paid to the Claimant the instalments of the transfer fee in
the amount of EUR 200,000. Thus, the Single Judge noted that it remained uncontested
that the amount of EUR 200,000 due, in accordance with the amendment, had been
fully paid.
19. At this stage, the Single Judge deemed it appropriate to recall that, concerning the
penalty of EUR 20,000, the Claimant had only provided a default letter dated 12 March
2019, by means of which the Claimant requested the Respondent to pay an amount of
EUR 14,000. However, the Single Judge highlighted that, in said letter, the Claimant
failed to specify to which instalment the alleged outstanding amount corresponded to.
In addition to the aforementioned, the Single Judge also noted that the said default
notice was sent to the Respondent on 12 March 2019 and, according to the bank
statement provided by the Respondent, the amount of EUR 200,000 was already fully
paid by 25 January 2019.
20. In addition, the Single Judge wished to emphasise that the penalty fee enshrined in
clause 4.3.c) of the amendment only referred to the instalments stipulated under lit. a)
and b) of clause 4.3. Consequently, the Single Judge deemed appropriate to underline
the following: (i) the penalty fee did not refer to the provisions of clause 6 of the
amendment, i.e. the payment of EUR 30,000 “to a third party”; and (ii) clause 6 did not
specify any fixed date.
21. As a result, considering the legal principle of burden of proof, together with the lack of
specification of the Claimant’s default notice, the Single Judge determined that the
Claimant lacked of entitlement to receive the penalty fee in the amount of EUR 20,000.
22. In view of all the foregoing, the Single Judge decided to reject the Claimant’s claim.
23. 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).
24. In respect of the above, and taking into account that the Claimant is the unsuccessful
party in the present proceedings, the Single Judge concluded that the procedural costs
are to be borne by the Claimant.
25. 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 5,000.
26. As a result, taking into account the particularities of the present matter as well as that
the claim of the Claimant has been rejected, the Single Judge determined the costs of
the current proceedings to the amount of CHF 5,000, which shall be borne by the
Claimant.
*****
III. Decision of the Single Judge of the Players’ Status Committee
1. The claim of the Claimant, NK Lokomotiva Zagreb, is rejected.
2. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the
Claimant. Considering that the Claimant already paid the amount of CHF 2,000 as advance
of costs, the Claimant is ordered to pay the amount of CHF 3,000 as procedural costs to
FIFA to the following bank account with reference to case no. 19-01949/jaa:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the appeal procedure:
According to art. 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. 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 (CAS)
Avenue de Beaumont 2
CH-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:
Emilio García Silvero
Chief Legal & Compliance Officer