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 15 April 2020
Decis ion of the S ingle Judge
of the Play ers ’ S tatus Committee
passed on 15 April 2020,
by
Johan van Gaalen (South Africa)
Single Judge of the Players’ Status Committee,
on the claim presented by the club
Paok Thes saloniki FC, Greece,
represented by Messrs Achilleas Mavromatis and
Christos Ap. Papathomas
as “Claimant”
against the club
Al Ittihad FC, Saudi Arabia,
represented by Mr Jan Kleiner
as “Respondent”
regarding a contractual dispute arisen between the parties.
I. Facts of the case
1. On 10 January 2019, the Greek club, Paok Thessaloniki FC (hereinafter: “the
Claimant”), and the Saudi club, Al Ittihad (hereinafter: “the Respondent”)
concluded a transfer agreement (hereinafter: “the contract”) in connection with the
definitive transfer of the player Aleksandear Prijovic (hereinafter: “the player”)
from the Claimant to the Respondent.
2. Clause 2.1 of the contract established that the Respondent should pay to the
Claimant the total net amount of EUR 10,000,000 as follows:
EUR 5,000,000 within 3 working days after the issuance of the ITC;
EUR 2,500,000 no later than 1 July 2019 and
EUR 2,500,000 no later than 1 October 2019.
3. Clause 2.3 of the contract established that: “AL ITTIHAD shall withhold five percent
(5%) from the Transfer Fee (from each installment) for the payment of solidarity
contribution according to the FIFA Regulations … In case a third club shall approach
PAOK with a claim for solidarity contribution, PAOK shall not make any direct
payment to such third club. AL ITTIHAD indemnifies PAOK against possible solidarity
contribution claims from all other clubs and shall hold PAOK harmless in case of any
such claims, provided that PAOK has duly directed such third clubs towards AL
ITTIHAD. Should PAOK be obliged to distribute any solidarity contribution to former
football clubs of the PLAYER, AL ITTIHAD undertakes the obligation to pay any such
amount to reimburse it to PAOK in case PAOK pays these amounts within thirty (30)
days from PAOK´s payment”.
4. Clause 2.4 of the contract provided: “The parties agree that in case of untimely or
incomplete execution by AL ITTIHAD of the second or third installment of the
Transfer Fee, AL ITTIHAD shall be obliged to additionally pay to PAOK a contractual
penalty amounting to Eight Percent (8%) of the respective instalment (or any part
of this remained unpaid), to be paid in case of delay in payment of such installment
(or part of this) for a period of more than ten (10) days. For this penalty to be
imposed, PAOK shall send on the eleventh (11th) day of delay a Notice of Payment
to the e-mail address of AL ITTIHAD stipulated in the Preamble of this Transfer
Agreement. If AL ITTIHAD does not pay the agreed amount on the next working
day after receiving the Notice of Payment, then it shall pay the above contractual
penalty of 8% within thirty (30) days from the end of said grace period for the
payment, along with an annual interest of eight percent (8%) (to be calculated
upon the Transfer Fee installment plus the contractual penalty). In any case PAOK
shall have the rights provided in Article 12bis of the FIFA Regulations on the Status
and Transfer of Players”.
5. On 11 January 2019, the International Transfer Certificate (ITC) was issued by the
respective federations and therefore the transfer was concluded.
6. On 11 October 2019, the Claimant sent a letter to the Respondent, requesting the
payment of EUR 2,375,000 corresponding to the 3rd instalment of the transfer fee,
granting it three days to comply with its contractual obligations and warning about
the contractual penalty of 8%, plus an annual interest of 8% it could face in case of
non-payment, to no avail.
7. On 4 November 2019, the Claimant sent a new default notice to the Respondent
requesting the same amounts than in the previous communication dated 11
October 2019 and granting a final deadline of 10 days (i.e. until 15 November 2019)
to the Respondent to remedy its default, to no avail.
8. On 18 November 2019, the Claimant lodged a claim in front of FIFA with the
following request:
1) to condemn the Respondent to pay EUR 2,375,000 (i.e. EUR 2,500,000 minus 5%
as solidarity contribution);
2) to condemn the Respondent to pay EUR 200,000 as contractual penalty of 8%
over the outstanding instalment;
3) to condemn the Respondent to pay an annual interest at a rate of 8% which
should be imposed on the due installment and the contractual penalty as from
16 November 20119 until the date of effective an full payment;
4) to impose sporting sanctions on the Respondent, legal fees and procedural costs.
9. According to the Claimant, the 3rd instalment has not been paid and consequently,
the Respondent violated its obligations arising from the transfer agreement.
10. In its response to the claim the Respondent referred firstly to the fact the club
regrets the delay that has occurred in this matter.
11. The Respondent added that the delay has occurred due to changes in the
management and some administrative complications.
12. Moreover, the Respondent, confirmed that “the due payment of all outstanding
amounts, plus interest, will be made as fast as possible”.
II. Cons iderations of the Single Judge of the Players ´ Status Committee
1. First of all, the Single Judge of the Player’s 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 18 November 2019. Consequently, the Rules Governing the Procedures of the
Players’ Status Committee and the Dispute Resolution Chamber (edition 2019;
hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21
of the Procedural Rules).
2. Subsequently, the Single Judge analysed which regulations should be applicable as
to the substance of the matter. In this respect, the Single Judge concluded that in
accordance with art. 26 par. 1 and par. 2 of the 2018 edition of the Regulations on
the Status and Transfer of Players, and considering that the present claim was
lodged on 18 November 2019, the October 2019 edition of said regulations
(hereinafter: ”the Regulations”) is applicable to the matter at hand as to the
substance.
3. Furthermore, the Single Judge confirmed that, based on art. 3 par. 1 and 2 of the
Procedural Rules in connection with art. 23 par. 1 and 4 as well as art. 22 lit. f) of
the Regulations, he was competent to deal with the present matter since it concerns
a dispute between clubs affiliated to two different associations.
4. 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.
5. In doing so and to begin with, the Single Judge noted that on 10 January 2019 the
Claimant and the Respondent concluded the contract which established a transfer
compensation amounting to EUR 10,000,000 payable in 3 instalments. In
continuation, the Single Judge took note of clause 2.4 of the contract which
provides that “a contractual penalty amounting to Eight Percent (8%) of the
respective instalment (or any part of this remained unpaid), to be paid in case of
delay in payment of such installment (or part of this) for a period of more than ten
(10) days”.
6. At this stage, the Single Judge recalled that it remained undisputed that the
Respondent did not pay to the Claimant the third instalment in accordance with the
contract amounting to EUR 2,375,000 (i.e. EUR 2,500,000 – 5%).
7. Therefore, as a first conclusion, the Single Judge underlined 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 Claimant is entitled
to receive from the Respondent the amount of EUR 2,375,000, relating to the third
instalment pursuant to the contract in accordance with its clause 2.1.
8. The Single Judge further observed that the Claimant asked to be awarded 8%
interest p.a. (cf. clause 2.4 of the contract) over the outstanding third instalment as
of 16 November 2019 until the date of effective payment.
9. In continuation, the Single Judge acknowledged that the Claimant requested a
penalty amounting to 8% over the outstanding amount, as well as, a 8% annual
interest (cf. clause 2.4 of the contract) over said penalty as from the relevant due
date and until the date of effective payment.
10. In this respect, the Single Judge was keen to emphasise that according to the long
standing and well-established jurisprudence of the Players´ Status Committee in
similar cases, a compensation or penalty for late payment cannot be requested
together with default interest as both requests are punitive in nature and aim at
compensating the creditor for late payment.
11. In this context, the Single Judge focused his attention on the penalty requested by
the Claimant and remarked that said penalty was contractually agreed by the
parties, i.e. clause 2.4 of the contract.
12. In addition, the Single Judge underlined that a 8% penalty over the outstanding
transfer fee seems to be a reasonable amount to compensate late payments.
13. Therefore, the Single Judge recalled, once again, the legal principle of pacta sunt
servanda according to which the Respondent must honoured the obligations
voluntarily assumed in the contract towards the Claimant
14. In view of the above, the Single Judge decided to grant the aforementioned penalty
of 8% over the third instalment agreed in clause 2.4 of the contract, i.e. EUR
190,000.
15. In view of all the above-mentioned considerations, the Single Judge decided that
the claim of the Claimant is partially accepted and that the Respondent has to pay
to the Claimant the amount of EUR 2,375,000 as outstanding transfer compensation
plus an interest of 8% per annum as from 16 November 2019 until the date of
effective payment, as well as, a penalty amounting to EUR 190,000.
16. Lastly, and pursuant to the consideration of point 10 above, the Single judge
rejected the Claimant´s request for interest over the penalty.
17. 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
stipulates 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.
18. 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.
19. 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.
20. Lastly, 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.
21. 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. 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).
22. 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 amount in dispute to be taken into consideration in the present proceedings is
EUR 2,575,000. Consequently, the Single Judge concluded that the maximum
amount of costs of the proceedings corresponds to CHF 25,000.
23. Taking into account that the responsibility of the failure to comply with the
payment of the transfer fee as agreed in the contract can be entirely attributed to
the Respondent, the Single Judge concluded that the Respondent has to bear the
costs of the current proceedings before FIFA.
24. In light of the above, the Single Judge determined the costs of the current
proceedings in the amount of CHF 25,000. Finally, the Single Judge decided that the
Respondent has to pay CHF 25,000 in order to cover the costs of the present
proceedings.
III. Decis ion of the S ingle Judge of the Play ers ’ S tatus Committee
1. The claim of the Claimant, Paok Thessaloniki FC, is partially accepted.
2. The Respondent, Al Ittihad FC, has to pay the claimant EUR 2,375,000.
3. The Respondent, has to pay the claimant EUR 190,000 as penalty.
4. Furthermore, the Respondent has to pay the Claimant interests to late payment of
8% p.a., calculated on the amount of EUR 2,375,000, as from 16 November 2019
until the date of effective payment.
5. Any further claim lodged by the Claimant is rejected.
6. The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittances under points 2, 3 & 4 above are to be
made and to notify the Players’ Status Committee of every payment received.
7. The Respondent shall provide evidence of payment of the due amounts in
accordance with points 2, 3 & 4 above 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).
8. In the event that the amounts due plus interest in accordance with point 2, 3 & 4
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 amounts are 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).
9. The ban mentioned in point 8 above will be lifted immediately and prior to its
complete serving, once the due amounts are paid.
10. In the event that the aforementioned sums plus interest in accordance with points
2, 3 & 4 above are 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.
11. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by
the Respondent to FIFA to the following bank account with reference to case nr.
19-02246/svi:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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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