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 25 May 2020

Decision of the

Single Judge of the Players' Status Committee

passed via videoconference, on 25 May 2020,

regarding a dispute concerning the transfer of the player Miguel David Terans Perez

BY:

Roy Vermeer (Netherlands), Single Judge of the PSC

CLAIMANT:

ATLÉTICO RENTISTAS, Uruguay

Represented by Mr Adrián Enrique Leiza Zunino

RESPONDENT:

CLUBE ATLÉTICO MINEIRO, Brazil

Represented by Tannuri Ribeiro Advogados

I. FACTS OF THE CASE

1. On 15 June 2018, the Uruguayan club, Atlético Rentistas (hereinafter: the Claimant) and the Brazilian club, Atlético Mineiro (hereinafter: the Respondent) signed a transfer agreement (hereinafter: the agreement) for the definitive transfer of the Uruguayan player, Miguel David Terans Perez (hereinafter: the player) from the former to the latter.

2. The agreement stipulated the following:

(free translation from Spanish)

“1.1. Object. Price. RENTISTAS, holder of the federative rights and one hundred percent (100 %) of the economic rights of the player, yields to ATLETICO MINEIRO, the above-mentioned federal rights and 70% of the economic rights derived from the federative pass in the gross amount of US dollars ONE MILLION SIX HUNDRED THOUSAND (USD 1,600,000.00), which should be paid as follows:

1.2. Method of payment:

1) on 10 July 2018 the sum of six hundred thousand US dollars (USD 600,000);

2) on 20 December 2018, the sum of US dollars two hundred and fifty thousand (USD 250,000);

3) on 20 June 2019, the sum of US dollars two hundred fifty thousand (USD 250,000);

4) on 20 December 2019, the sum of US dollars two hundred and fifty thousand (USD 250,000);

5) on 20 June 2020, the sum of two hundred fifty thousand (USD 250,000).”

“1.3. If ATLETICO MINEIRO does not comply on the date with any of the payments foreseen in numbers 1), 2), 3), 4) and 5) above, prior notice for the period of twenty (20) calendar days, the expiration of the payments not due on that date will take place as a matter of right, and in this case RENTISTAS may claim the total capital that corresponds, plus the penalty clause foreseen in this contract (clause 8.2).”

“8.2. PENALTY CLAUSE. In case ATLETICO MINEIRO does not comply with the payments in time and form foreseen in the present contract, ATLETICO MINEIRO will pay, besides the sums owed, previous notice for the term of twenty (20) days, 20% (twenty percent) of the amount owed as Penalty fee, both parties acknowledging the full validity of the same.

8.3. Without prejudice to the provisions, ATLETICO MINEIRO, shall assume the fees and expenses demanded from RENTISTAS for having to act before the competent FIFA bodies and/or eventually before the CAS, which will be included in the amount to be claimed.

The professional fees that demand to RENTISTAS the promotion of actions will not be able to exceed the amount equivalent to 10% (ten par hundred) of the claimed amount.”

3. On 8 October 2019, the Claimant put the Respondent in default for the payment of the amount of USD 190,000, corresponding to the unpaid part of the third instalment of the compensation foreseen in the agreement, setting a deadline of 20 days.

4. On 14 November 2019, the Claimant lodged a claim against the Respondent in front of FIFA requesting the payment of the amount of USD 897,000 corresponding to the following:

• The totality of the residual value of the transfer fee for an amount of USD 690,000;

• The penalty clause for an amount of USD 138,000 (20% of the total amount of USD 690,000);

• Legal fees in the amount of USD 69,000 in application of art. 8.3 of the transfer agreement;

• Reimbursement of the advance of cost in the amount of CHF 5,000;

5. Furthermore, the Claimant requested the imposition of sporting sanctions on the Respondent.

6. In its claim, the Claimant deemed that from the instalment of USD 250,000 due on 20 June 2019, the Claimant only paid an amount of USD 60,000, despite being put in default on 8 October 2019.

7. Moreover, the Claimant considered that in application of the transfer agreement, and due to the Respondent’s absence of the complete payment of the instalment of 20 June 2019, the total value of the transfer agreement became due, as well as the penalty clause and the legal fees.

8. In its reply, the Respondent acknowledged that it only paid USD 60,000 from the instalment due on 20 June 2019 and explained that the club has financial difficulties.

9. Furthermore, the Respondent argued that the penalty clauses as stipulated in art. 1.3 and 8.2 of the agreement are not valid as they violate the principle of ne bis in idem. Moreover, even in case that the clauses would be considered as valid, the Respondent argued that they are disproportionate.

10. In regards to the legal fees claimed by the Claimant, the Respondent highlighted that the Claimant failed to provide any evidence of such costs and therefore, such a claim needs to be rejected.

11. Finally, the Respondent deemed that only the third instalment became due and therefore, the Claimant shall only be entitled to the amount of USD 190,000.

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 took note that the present matter was submitted to FIFA on 14 November 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned 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 March 2020 edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged in front of FIFA on 14 November 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.

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. 4 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 two 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. The Single Judge emphasised, however, 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. In particular, the Single Judge emphasised that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documents or evidence generated or contained in the TMS.

5. First of all, the Single Judge acknowledged that on 15 June 2018, the parties concluded a transfer agreement relating to the transfer of the player from the Claimant to the Respondent with the terms as indicated in point I.2 above.

6. The Single Judge then reviewed the claim of the Claimant who requested the payment of USD 897,000 considering that the Respondent failed to pay the full third instalment of the compensation foreseen in the transfer agreement (cf. I.2 above).

7. Furthermore, the Single Judge observed that, for its part, the Respondent acknowledged that it didn’t pay the full instalment, but the club rejected the claim and deemed that the penalty fee is disproportionate and therefore, shall not be applied. Moreover, the Single Judge took note of the Respondent’s argument that only the third instalment became overdue and that the Claimant shall only be entitled to USD 190,000.

8. In addition, the Single Judge acknowledged the argument of the Respondent that the Claimant did not provide any evidence for legal costs.

9. Having duly examined the argumentation put forward by the parties, the Single Judge observed that it remained uncontested that the Respondent did not pay the full amount of the third instalment as stipulated in the agreement. Moreover, the Single Judge further noted that it also remained uncontested that the Claimant had put the Respondent in default giving the Respondent a deadline of 20 days to remedy its default.

10. In continuation, the Single Judge analysed art. 1.3 of the agreement (cf. I.2 above) and acknowledged that it contained a provision according to which, in the event of failure of the Respondent to pay any amount that had fallen due after having been put default and given a 20-day deadline to comply, any amount foreseen in art. 1.2 of the agreement would immediately fall due. In other words, the Single Judge remarked that art. 1.3 of the agreement was in fact an acceleration clause.

11. The Single Judge, having acknowledged that the Respondent was put in default on 8 October 2019 with regards to the payment of the third instalment of the transfer fee, was given 20 days to comply (cf. I.3 above) and did not pay said instalment in full, the Single Judge concluded that the total residual amount of the compensation became due on 29 October 2019.

12. In particular, the Single Judge observed that as of 29 October 2019, the total residual amount of the compensation set out in art. 1.2 of the agreement amounted to USD 690,000, corresponding to the outstanding amount of USD 190,000 from the partially paid third instalment, USD 250,000 as the fourth instalment and USD 250,000 as the fifth instalment.

13. Having determined the above, the Single Judge focussed his attention on the penalty clause in art. 8.2 of the agreement and concluded that penalty clauses may be freely entered into by the contractual parties and may be considered acceptable, in the event that the pertinent written clause meets certain criteria such as proportionality and reasonableness. In this regard, the Single Judge highlighted that in order to determine as to whether a penalty clause is to be considered acceptable, the specific circumstances of the relevant case brought before him shall also be taken into consideration.

14. In this specific case at hand, the Single Judge deemed that a penalty fee in the amount of 20% of the outstanding amount, which the parties contractually agreed upon in the context of the agreement, is, according to the longstanding jurisprudence of FIFA, both proportionate and reasonable.

15. On account of the above, the Single Judge decided that the penalty fee of USD 138,000 is valid and applicable in the present matter.

16. The Single Judge then focussed his attention on the request of the Claimant for legal fees in the amount of USD 69,000.

17. In this regard, the Single Judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and FIFA’s respective longstanding jurisprudence in this regard. In particular, the Single Judge wished to highlight, that even though the agreement stipulated the payment of the legal costs in art. 8.3, the Claimant failed to provide any evidence for such costs.

18. On account of all of the aforementioned considerations, the Single Judge decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant a total amount of 828,000, corresponding to the residual value of the transfer fee, as well as the penalty fee in the amount of 20%.

19. Therefore, the Single Judge decided to partially accept the Claimant’s claim and concluded his deliberations by rejecting any further claim of the Claimant.

20. Furthermore, taking into account the consideration under number II./2. above, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

21. In this regard, the Single Judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

22. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

23. Furthermore, the Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

24. 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 and 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 and are normally to be paid by the unsuccessful party.

25. In respect of the above, and taking into account that the claim of the Claimant had been partially accepted, the Single Judge concluded that both the Claimant and the Respondent had to bear a part of the costs of the current proceedings before FIFA.

26. 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 higher than CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

27. In conclusion, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000. Moreover, in line with his aforementioned considerations and taking into account the degree of success, the Single Judge of the Players’ Status Committee decided that the amount of CHF 23,000 has to be paid by the Respondent and the amount of CHF 2,000 by the Claimant 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, Atlético Rentistas, is partially accepted.

2. The Respondent, Clube Atlético Mineiro, has to pay to the Claimant the amount of USD 828,000.

3. Any further claim of the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, of the relevant bank account to which the Respondent must pay the amounts mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amounts in accordance with point 2. to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amounts due in accordance with point 2. above are not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amounts are paid.

8. In the event that the aforementioned sum is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

9. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by both parties in the following manner:

a. CHF 2,000 by the Claimant to FIFA. As the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the proceedings, the Claimant does not need to pay any further amounts as procedural costs;

b. CHF 23,000 by the Respondent to FIFA to the following bank account with reference to case nr. 19-02148:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

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