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 Cleiton Augusto Oliveira Silva

BY:

Roy Vermeer (Netherlands), Single Judge of the PSC

CLAIMANT:

MUANGTHONG UNITED FC, Thailand

Represented by Mr Supat Tirachusak

RESPONDENT:

SHANGHAI SHENXIN FC, China PR

I. FACTS OF THE CASE

1. On 13 February 2017, the Thai club, Muangthong United FC (hereinafter: the Claimant) and the Chinese club, Shanghai Shenxin FC (hereinafter: the Respondent) signed a transfer agreement (hereinafter: the agreement) for a transfer of the player, Cleiton Augusto Oliveira Silva (hereinafter: the player), for a transfer fee in the amount of USD 500,000. Moreover, the parties agreed on conditional bonuses connected to the performance of the player in the total amount of USD 100,000.

2. The agreement stipulated the following:

“1.8. In addition, the Parties agree to pay cumulative bonuses for the cases and in the terms set below:

i. A first extra bonus of USD 50,000 (fifty thousand American Dollars) to MUANGTHONG FC if the Player scores 10 goals in the league games during the season 2017.

ii. A second extra bonus of USD 50,000 (fifty thousand American Dollars) to MUANGTHONG FC if the Player scores 15 or more goals in the league games during the season 2017.”

3. On 28 October 2017, the Respondent played its last game of the 2017 season.

4. On 1 November 2017, the Claimant issued an invoice for the Respondent, requesting the amount of USD 100,000, corresponding to the bonuses.

5. On 2 August 2018, the Claimant sent a default notice to the Respondent, requesting the amount of USD 107,000 corresponding to the conditional bonuses (VAT included), granting the latter 15 days to comply with its contractual obligations.

6. On 22 August 2018, the Respondent requested new invoice, which was sent by the Claimant on 5 September 2018.

7. Further correspondence has been exchanged between the parties regarding the delay of the payment.

8. On 14 December 2018, the Respondent informed the Claimant about payment of the solidarity contribution in the amount of USD 12,250, regarding the above-mentioned transfer of the player, which should be paid by the Claimant since the relevant 5% of the agreed transfer fee were not deducted.

9. In reply to that, the Claimant accordingly corrected the invoice to the amount of USD 87,750.

10. On 4 November 2019, the Claimant lodged a claim in front of FIFA requesting the following:

“The Respondent shall pay to the Claimant the overdue payable of cumulative bonuses in an amount of USD 87,750, plus default interest at the rate of 7.5% per annum as from August 2, 2018 until the full payment in made to the Claimant.”

“Any other severe penalty and/or compensation in accordance with the Regulations as considered by the Players’ Status Committee.”

11. In spite of being invited to do so, the Respondent did not reply to the claim.

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 4 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 4 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 would, in principle, be competent to deal with the present matter since it concerned a dispute between two clubs affiliated to two different associations.

4. Notwithstanding the above, bearing in mind that the bonus at the basis of the present matter was referring to the 2017 sporting season, as well as the fact that the Claimant lodged his claim against the Respondent in front of FIFA on 4 November 2019, the Single Judge considered that he should examine if the present claim, or any part of it, is barred by the statute of limitations.

5. Indeed, the Single Judge referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the deciding body shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

6. In view of the above, the Single Judge deemed it fundamental to underline that in order to determine whether he could hear the present matter, he should, first and foremost, establish which is “the event giving rise to the dispute”, i.e. which is the starting point of the time period of two years as set out under art. 25 par. 5 of the Regulations.

7. 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. 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.

8. In this respect, the Single Judge acknowledged that on 13 February 2017, 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.

9. Furthermore, the Single Judge observed that clause 1.8 did not contain a specific due date. In the absence of a clear due date, the Single Judge deemed that the bonus became due latest after the last game of the season which occurred on 28 October 2017.

10. Referring to the invoice sent by the Claimant to the Respondent dated 1 November 2017, the Single Judge also remarked that the Claimant had itself deemed that at the date of invoice the bonus had become due.

11. Bearing in mind that the Claimant lodged the present claim on 4 November 2019, the Single Judge observed that more than two years had elapsed between the due date of the bonus and the date upon which the claim of the Claimant was lodged.

12. As a consequence, referring to art. 25 par. 5 of the Regulations, the Single Judge concluded that the claim of the Claimant is barred by the statute of limitations and is, consequently, inadmissible.

13. 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).

14. In respect of the above, and taking into account that the claim of the Claimant is inadmissible, the Single Judge concluded that the Claimant has to bear the entire costs of the current proceedings in front of FIFA.

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. Consequently and taking into account that the total amount at dispute in the present matter is USD 100,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

16. In conclusion, the Single Judge determined the costs of the current proceedings to the amount of CHF 6,000. Moreover, in line with his aforementioned considerations, the Single Judge decided that the amount of CHF 6,000 has to be paid by the Claimant.

III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant, Muangthong United FC, is not admissible.

2. The final costs of the proceedings in the amount of CHF 6,000 are to be paid by the Claimant to FIFA to the following bank account with reference to case nr. 19-02085:

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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