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 in Zurich, Switzerland, on 25 May 2020,
regarding a dispute concerning the transfer of the player ANTONIO ARNALDO
SANABRIA AYALA
BY:
Roy Vermeer (Netherlands), Single Judge of the PSC
CLAIMANT:
Real Betis Balompié, Spain
RESPONDENT:
Genoa Cricket FC, Italy
I. FACTS OF THE CASE
1. On 25 January 2019, the Spanish club, Real Betis Balompié (hereinafter: the Claimant) and the
Italian club, Genoa Cricket FC (hereinafter: the Respondent) concluded a loan agreement for the
player Arnaldo Antonio Sanabria Ayala.
2. According to the said loan agreement, the player was loaned by the Claimant to the Respondent
for the remainder of the 2018/2019 season until the end of the 2019/2020 season, i.e. until 30
June 2020, with an option to transfer the player on a permanent basis to the Respondent.
3. The agreement stipulated a loan fee of EUR 550,000 payable in two instalments as follows: EUR
200,000 within 7 days of being registered with the Respondent; EUR 350,000 until 31st July
2019.
4. The loan agreement also provided for several contingent payments as follows (art. 2.3. of the
loan agreement):
EUR 200,000 the first time the player participates in 5 official matches for at least 45 minutes
each with the Respondent’s first team during the loan period;
EUR 500,000 upon the player participating in further 25 official matches for at least 45 minutes
each with the Respondent’s first team during the loan period;
EUR 250,000 upon the player scoring 15 goals in official matches with the Respondent’s first
team during the loan period.
5. Art. 2.3. of the loan agreement further stipulates:
“The referred amounts are to be considered as cumulative. For the avoidance of doubt, and for
the sake of explanation only, the first time that during the Loan Period the Player participates in
thirty (30) official matches for at least forty-five (45) minutes each with Genoa’s first team, it
means that Genoa will have already paid to Real Betis as Contingent Payments the amount of €
700,000.00 (seven hundred thousand euro), plus any applicable VAT; and if for the same period
of time the Player also scores fifteen (15) goals in official matches with Genoa’s first team, Genoa
will have already paid to Real Betis as Contingent Payments the overall amount of € 950,000
(nine hundred fifty thousand euro), plus any applicable VAT, according to the terms established
above”.
“The Contingent Payments payable pursuant to sub-clause 2.3. shall become payable within 45
days of the occurrence of the relevant event or events above mentioned by wire transfer,
provided that Genoa receives the relevant valid invoice from Real Betis”.
6. Art. 2.6. of the loan agreement further stipulates as follows regarding the non-payment of the
agreed amounts:
“If Genoa fails or delays more than fifteen (15) working days of the above agreed dates, Genoa
is obliged to pay a penalty of € 15,000 (fifteen thousand euro), for every fifteen day (15-day)
delay up to a maximum amount equivalent to the outstanding amount due by Genoa at that
time under clause 2 of the Agreement”.
7. On 14 and on 27 November 2019, the Claimant put the Respondent in default of payment of
the amount of EUR 350,000 corresponding to the second instalment of the fixed loan fee and
EUR 200,000 corresponding to the contingent payment related to the player’s participation in 5
official matches for at least 45 minutes each with the Respondent’s first team, “plus any
applicable VAT, relative to the first contingent payment stated in the stipulated 2.3 of the
agreement”. The Claimant granted the Respondent 10 days to remedy the default, however to
no avail.
8. On 23 January 2020, the Claimant lodged a claim against the Respondent in front of FIFA for
breach of the loan agreement concluded between the parties.
9. The Claimant requests from the Respondent the payment of the total amount of EUR
928,999.99, broken down as follows:
EUR 350,000 corresponding to the second instalment of the fixed loan fee;
EUR 200,000 corresponding to the contingent payment due in case the player participates in
5 official matches for at least 45 minutes each with the Respondent’s first team during the
loan period;
EUR 378,999.99 as penalty for non-payment, i.e. EUR 153,000 for 153 days of delay in the
payment of EUR 350,000 and EUR 225,999.99 for 226 days of delay in the payment of the
amount of EUR 200,000.
10. In spite of having been requested by the FIFA administration to do so, the Respondent did not
provide a response to the Claimant’s claim.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS' STATUS
COMMITTEE
11. First of all, the Single Judge of the Players’ Status Committee (hereinafter: 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 23 January 2020 and decided on 25 May
2020. Consequently, the 2019 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is
applicable to the matter at hand (cf. art. 21 of the Procedural Rules).
12. Subsequently, the Single Judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and
confirmed that in accordance with art. 23 par. 1 and par. 4 in conjunction with art. 22 lit. f) of
the Regulations on the Status and Transfer of Players (edition March 2020) he is competent to
deal with the present matter, which concerns a dispute between two clubs affiliated to different
associations.
13. Furthermore, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and
par. 2 of the Regulations on the Status and Transfer of Players (edition March 2020), and
considering that the present claim was lodged on 23 January 2020, the January 2020 edition of
the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
14. The competence of the Single Judge and the applicable regulations having been established, the
Single Judge entered into the substance of the matter. In this respect, the Single Judge started
by acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. 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.
15. Equally, the Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12
par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an
alleged fact shall carry the respective burden of proof.
16. Having said this, the Single Judge started by acknowledging that the Claimant and the
Respondent signed a loan agreement for the loan of the player Arnaldo Antonio Sanabria Ayal.
Pursuant to this agreement, the Respondent undertook to pay to the Claimant a fixed transfer
fee of EUR 550,000 in two instalments as follows: EUR 200,000 within 7 days of being registered
with the Respondent; EUR 350,000 until 31st July 2019.
17. Furthermore, the Respondent undertook to pay various contingent payments, including the
amount of EUR 200,000 in case the player participated in 5 official matches for at least 45
minutes each with the Respondent’s first team during the loan period.
18. The loan agreement also contained a penalty clause (art. 2.6. of the loan agreement), should
the Respondent fail to pay any of the agreed amounts in a timely manner. The said clause
stipulates the following:
“If Genoa fails or delays more than fifteen (15) working days of the above agreed dates, Genoa
is obliged to pay a penalty of € 15,000 (fifteen thousand euro), for every fifteen day (15-day)
delay up to a maximum amount equivalent to the outstanding amount due by Genoa at that
time under clause 2 of the Agreement”.
19. The Single Judge duly acknowledged the Claimant’s claim, in which the latter maintains that the
Respondent did not pay the second instalment of the loan fee due on 31st July 2019. Equally,
the Claimant sustained that the Respondent was also in default of the contingent payment of
EUR 200,000 due in case the player participated in 5 official matches for at least 45 minutes
each with the Respondent’s first team during the loan period, as such condition had allegedly
materialised. Finally, the Claimant, relying on art. 2.6. of the loan agreement, claims the amount
of EUR 378,999.99 as penalty for non-payment, i.e. EUR 153,000 for 153 days of delay in the
payment of EUR 350,000 and EUR 225,999.99 for 226 days of delay in the payment of the
amount of EUR 200,000.
20. In continuation, the Single Judge noted that the Respondent, for its part, had not provided a
response to the claim. Thus, the present matter shall be assessed on the basis of the documents
on file (cf. art. 9 par. 3 of the Procedural Rules).
21. In light of the Claimant’s claim and supporting documents, and taking into account that it
remained undisputed that the second instalment of the loan agreement in the amount of EUR
350,000 remained outstanding, the Single Judge concluded that, in accordance with the legal
principle of pacta sunt servanda, the Respondent must pay the Claimant EUR 350,000.
22. With regard to the penalty in the amount of EUR 378,999.99 as claimed, the Single Judge first
analysed the wording of art. 2.6. of the loan agreement as recalled in par. II.18. above. In the
Single Judge’s view, such provision in fact consists of a hidden interest clause. A penalty clause
amounting to EUR 15,000 for every 15 days for late payment in relation to an outstanding
amount of EUR 350,000 is, in the Single Judge’s opinion, manifestly disproportionate and
exorbitant, and as such, cannot be enforced.
23. In view of the above, the Single Judge, referring to the longstanding practice of the Players’
Status Committee, held that the “interest rate” which is in fact provided in art. 2.6. of the loan
agreement, should be reduced to a 18% interest per annum, which corresponds to the
maximum interest in accordance with Swiss law.
24. In conclusion, the Single Judge held that, to the amount of EUR 350,000 must applied an interest
rate of 18% p.a. as from 1st August 2019, i.e. one day after the due date of the second
instalment, until the date of effective payment.
25. Finally, the Single Judge turned his attention to the Claimant’s claim regarding the contingent
payment of EUR 200,000 due in case the player participates in 5 official matches for at least 45
minutes each with the Respondent’s first team during the loan period. In this regard, the Single
Judge noted that the Claimant had not provided any evidence that the respective condition had
indeed been met. In view of the foregoing, and with reference to the principle of burden of
proof contained in art. 12 par. 3 of the Procedural Rules, the Single Judge held that this part of
the Claimant’s claim must be rejected.
26. In light of all the above considerations, the Single Judge decided that the Claimant’s claim is
partially accepted.
27. Furthermore, taking into account the consideration under number II./3. 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.
28. In this regard, the Single Judge established that, in virtue of the aforementioned provision, it has
competence to impose a sanction on the club. More in particular, the Single Judge pointed out
that, against clubs, the sanction shall consist in a ban 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.
29. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the club
does not pay the amount due to the player within 45 days as from the moment in which the
player, following the notification of the present decision, communicates the relevant bank details
to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.
30. The Chamber recalled that the above-mentioned sanction 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.
31. 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.
32. In this respect, the Single Judge reiterated that the Claimant’s claim is partially accepted, whereas
the Respondent is still at fault. Therefore, the Single Judge decided that both parties shall bear
part of the costs of the current proceedings in front of FIFA.
33. 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 amount at dispute in the present matter, the Single Judge concluded that the maximum
amount of costs of the proceedings corresponds to CHF 25,000.
34. In conclusion and in view of the medium level of complexity of the present matter from a legal
and factual point of view but, equally, bearing in mind that the Respondent did not reply to the
claim, the Single Judge determined the costs of the current proceedings to the amount of CHF
25,000.
35. Consequently, the Single Judge determined that the Respondent shall pay the amount of CHF
20,000 and the Claimant shall pay the amount of CHF 5,000 in order to cover the costs of the
present proceedings.
III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Real Betis Balompié, is partially accepted.
2. The Respondent, Genoa Cricket FC, has to pay to the Claimant the amount of EUR 350,000,
plus interest of 18% p.a. as from 1 August 2019 until the effective date of payment.
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 amount plus interest mentioned under
point 2. above.
5. The Respondent shall provide evidence of payment of the due amount plus interest 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 amount due plus interest 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 amount plus interest is paid.
8. In the event that the aforementioned sum plus interest 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 5,000 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 20,000 by the Respondent to FIFA to the following bank account with reference to
case nr. 20-00152/svi:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
For the Dispute Resolution Chamber:
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:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777