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 14 February 2020

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 14 February 2020,

by

Roy Vermeer (Netherlands)

Single Judge of the Players’ Status Committee,

on the claim presented by the club

FC Olimpija, Slovenia represented by Mr Janez Pejovnik

as Claimant

against the club

Football Club Rubin Kazan, Russia as Respondent

represented by Ms Maria Tokmakova

regarding a contractual dispute between the parties

I. Facts of the case

1. On 31 May 2018, the Slovenian club FC Olimpija (hereinafter: the Claimant) concluded a transfer agreement (hereinafter: the agreement) with the Russian Football Club Rubin Kazan (hereinafter: the Respondent) in relation to the transfer of the player Filip Uremovic (hereinafter: the player) to the latter club by means of which the Respondent had to pay to the Claimant a transfer fee EUR 1,000,000 payable on 5 July 2018.

2. In addition, pursuant to art. 4.2 of the agreement, the parties agreed that “In case of late payment FC RUBIN will pay the fine in the amount of the € 2.500 per day calculated from 06 July 2018 and until the day of the effective payment.”

3. On 1 August 2018, the Claimant, by correspondence sent to the Respondent, maintained that it did not receive the total amount of EUR 250,000 “unpaid part of the whole agreed amount with the Agreement”.

4. Moreover, on 27 September 2019, the Claimant addressed the Respondent with a further correspondence, indicating that it did not receive the total amount of EUR 250,000 and that pursuant to art. 4.2 of the transfer agreement, also a remaining amount of EUR 102,375 fell due “default interests until 14 September 2018”.

5. On 5 November 2018, the Claimant lodged a claim with FIFA against the Respondent and requested from the latter the payment of EUR 417,500 as penalty fee in accordance with art. 4.2 of the transfer agreement and EUR 20,000 as compensation related to the Claimant’s attorney and other expenses incurred for the defence of its interests. The Claimant further requested the imposition of all procedural costs in connection with the present proceedings.

6. In its response, the Respondent, firstly, pointed out that “Rubin paid the whole agreed transfer compensation fee, but with delays:

- 300 000 EUR on 10 July 2018;

- 150 000 EUR on 3 August 2018;

- 200 000 EUR on 16 August 2018;

- 100 000 EUR on 14 September 2018;

- And 250 000 EUR on 18 December 2018, that is after the Claimant submitted a claim to FIFA Players’ Status Committee (the “PSC”), but before it was received by the Respondent.”

7. In this respect, the Respondent argued that it “does not have any outstanding payments on the transfer compensation fee. Thus, Olimpija’s claim for the payment of 250 000 EUR is no longer relevant”.

8. Moreover, the Respondent maintained that the contractual penalty envisaged at art. 4.2 “is disproportionate and abusive and, thus, should be reduced”. In this context, it held “that interest rate of 5% per year usually applied in accordance with Article 104 paragraph 15 of the Swiss Code of Obligations is reasonable and just compensation and, hence, Olimpija should be entitled to receive interest of 5% per year”.

9. In view of the above, the Respondent requested FIFA to reject the Claimant’s claim. In the alternative, it requested to reduce the contractual penalty “to a reasonable amount” and to reject the claim for compensation related to the Claimant’s attorney and other expenses.

10. Finally, on 14 January 2019, the Claimant acknowledged the payment of the amount USD 250,000 made by the Respondent, but it requested the payment of “late payment interests in amount of 2.500,00 EUR per day calculated from 6 July 2018 until the day of the effective payment which has been done 18 December 2018 and consequently such late payment interests have accrued to the amount of 417.500,00 EUR”.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed which Procedural Rules were applicable to the matter at hand. In this respect, he referred to 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) as well as to the fact that the present matter was submitted to FIFA on 5 November 2018 and decided on 14 February 2020. Therefore, the Single Judge concluded that the 2019 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 January 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 5 November 2018. In view of the foregoing, the Single Judge concluded that the June 2018 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.

5. First of all, the Single Judge acknowledged that it was undisputed between the parties that the transfer agreement was concluded relating to the transfer of the player from the Claimant to the Respondent and that according to said agreement the Respondent undertook to pay to the Claimant a transfer fee EUR 1,000,000.

6. Equally, the Single Judge observed that pursuant to art. 4.2 of the agreement, the parties agreed that “In case of late payment FC RUBIN will pay the fine in the amount of the € 2.500 per day calculated from 06 July 2018 and until the day of the effective payment.”

7. Likewise, the Single Judge acknowledged that the amount of EUR 250,000, claimed by the Claimant, was finally paid by the Respondent with delay, during the proceedings.

8. Having established the above, the Single Judge further noted that the Claimant, after acknowledging the receipt of the entire transfer fee, amended his original claim, requesting a total amount of EUR 437,500, arguing that the Respondent did not pay the transfer fee on time and therefore the latter triggered the application of art. 4.2 of the agreement.

9. Furthermore, the Single Judge took note that, in its reply, the Respondent held that it paid the total amount agreed in the agreement, and considered that the contractual penalty envisaged at art. 4.2 “is disproportionate and abusive and, thus, should be reduced”.

10. On account of the above, the Single Judge held that it was beyond doubt that the Claimant and the Respondent had agreed upon the transfer of the player and had concluded a valid transfer agreement by means of which the player was transferred from the Claimant to the Respondent for the total amount of EUR 1,000,000. Subsequently, the Single Judge that the EUR 250,000 which had remained outstanding from the transfer fee had been paid by the Respondent during the proceedings, which was acknowledged by the Claimant. However, the Single Judge also noted that such amount was paid late and that the transfer agreement provided for specific consequences in case of late payment.

11. Having established the above, the Single Judge went on to examine the issue raised in the present matter by the Claimant, i.e. the Claimant’s request to be awarded with the amount of EUR 2,500 for each day of late payment, basing its request on the provision contained in the transfer agreement that reads as follows: “In case of late payment FC RUBIN will pay the fine in the amount of the € 2.500 per day calculated from 06 July 2018 and until the day of the effective payment.”

12. The Single Judge acknowledged the arguments of both parties in respect of the penalty clause and, after analysing the relevant provision contained in the transfer agreement, he noted that such provision in fact consisted of a hidden interest clause. He also noted that a penalty clause amounting to EUR 2,500 per day for late payment in relation to an outstanding amount of EUR 250,000 is to be considered as manifestly disproportionate and exorbitant, and as such, cannot be enforced. In particular, he noted that such clause provided for an interest rate of 365% p.a.. In view of the foregoing, the Single Judge held that the penalty clause contained in the transfer agreement – in fact an interest clause – concluded between the parties, in accordance with the longstanding practice of the Players’ Status Committee, should be reduced to a maximum of 18% interest p.a. and that, as a consequence, the Respondent has to pay 18% p.a. default interest on the late payment of the amount of EUR 250,000.

13. In conclusion, the Single Judge decided to partially accept the claim of the Claimant and determined that the Respondent is liable to pay to the Claimant an 18% interest p.a. on the amount of EUR 250,000 as from 6 July 2018 until 18 December 2018, day of the effective payment of the mentioned amount.

14. The Single Judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.

15. 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).

16. 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 as well as the Respondent had to bear a part of the costs of the current proceedings before FIFA.

17. 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 437,500. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

18. In conclusion and considering the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000. Taking into account the degree of success, the Single Judge of the Players’ Status Committee decided that the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 10,000 to be borne by the Respondent.

19. 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.

20. 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.

21. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amount 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.

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

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II. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, FC Olimpija, is partially accepted.

2. The Respondent, Football Club Rubin Kazan, has to pay to the Claimant an 18% interest p.a. on the amount of EUR 250,000 as from 6 July 2018 until 18 December 2018.

3. Any further claim lodged by 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 mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. 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).

6. In the event that the amount due in accordance with point 2. above is 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 is 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 15,000 are to be paid by both parties as follows:

9.1 The amount of CHF 5,000 has to be paid by the Claimant. Considering that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the Claimant is exempt from the payment of the final cost of the proceedings.

9.2 The amount of CHF 10,000 has to be paid by the Respondent to FIFA to the following bank account with reference to case nr. 18-02351/mdo-pec:

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 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 related 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.

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

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