F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2020-2021) – fifa.com – atto non ufficiale – Decision 23 February 2021

Decision of the

Single Judge of the Players' Status Committee

passed on 23 February 2021,

regarding a dispute concerning the transfer of the player Jesse Joronen

BY:

Roy Vermeer (Netherlands), Single Judge of the PSC

CLAIMANT:

FC Copenhagen, Denmark

Represented by Mr. Philip Nyholm

RESPONDENT:

Brescia Calcio, Italy

I. FACTS OF THE CASE

1. On 11 July 2019, the Danish club, FC Copenhagen (hereinafter: the Claimant) and the Italian club, Brescia Calcio (hereinafter: the Respondent) signed an agreement regarding the transfer of the player, Jesse Joronen (hereinafter: the player), from the Claimant to the Respondent.

2. According to the transfer agreement, the Respondent undertook to pay to the Claimant the amount of EUR 5,000,000 in 5 instalments, as follows:

(a) EUR 1,000,000 on 30 August 2019;

(b) EUR 1,000,000 on 30 January 2020;

(c) EUR 1,000,000 on 30 August 2020;

(d) EUR 1,000,000 on 30 January 2021;

(e) EUR 1,000,000 on 30 August 2021.

3. Art. 2.4 of the transfer agreement reads as follows: “If default shall at any time be made by Brescia in the payment of the sums due to Copenhagen under the payment schedule (article 2.1), the full amount is immediately due and Brescia shall pay a 5% penalty of the total fixed transfer compensation after 15 calendar days of payment delay. The sum payable shall be automatically paid with interest at a rate equal to 5%”.

4. On 1 September 2020, the Claimant sent an email to the Respondent requesting if the payment of EUR 950,000 was “on its way”.

5. On 18 September 2020, the Claimant put the Respondent in default and requested payment of 3,107,520.83, corresponding to the residual 3 instalments (EUR 950,000 each) as well as the penalty agreed upon and default interest, within 10 days.

6. On 18 September 2020, the Respondent replied via email stating that it was in default due to its “economic situation linked to the COVID-19 pandemic” and requested the Claimant to be “patient only until October”.

7. On 19 September 2020, the Claimant declined to agree on any further delay.

8. On 7 October 2020, the Claimant lodged a claim against the Respondent in front of FIFA, requesting payment of EUR 3,107,520.83, as follows:

- EUR 2,850,000 corresponding to the instalments c), d) and e) of the transfer agreement (3 instalments of EUR 950,000);

- EUR 250,000 as contractual penalty resulting from art. 2.4 of the transfer agreement;

- EUR 7,520.83 as interest (5% interest p.a. “on the sum payable”).

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9. In its claim, the Claimant maintained that the Respondent failed to remit the third instalment, even after the default notice.

10. In this respect, the Claimant argued that the outbreak of the COVID-19 pandemic does not entitle the Respondent to delay payments.

11. In its reply to the claim, the Respondent held that it remitted the amount of EUR 950,000, corresponding to the third instalment in the meantime.

12. In this context, the Respondent held that the delay of said payment was caused by the outbreak of the COVID-19 pandemic, which led to a “force majeure situation” due to its financial impact on the Respondent and Italian Football in general.

13. On account of the above, the Respondent requested to ignore the contractual penalty since the delay was caused to force majeure or to considerably reduce it.

14. In return, the Claimant acknowledged receipt of the following payments:

- EUR 950,000 on 15 October 2020;

- EUR 950,000 on 31 January 2021.

15. On account of the above, the Claimant stated that the amount of EUR 1,207,520.83 remained outstanding.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge) analysed whether he was competent to deal with the present matter. In this respect, he took note that the present matter was submitted to FIFA on 7 October 2020. Taking into account the wording of art. 21 of the June 2020 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 referred to art. 3 paras 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 23 paras 1 and 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition August 2020) he is competent to deal with the matter at stake, which concerns a contractual dispute between clubs affiliated to different associations.

3. 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 February 2021), and considering that the present claim was lodged on 7 October 2020, the October 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

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. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement on 11 July 2019, regarding the transfer of the player from the Claimant to the Respondent, according to which the Respondent undertook to pay the Claimant the total amount of EUR 5,000,000 in five instalments.

6. The Single Judge further took note of the fact that the parties agreed the following clause: “If default shall at any time be made by Brescia in the payment of the sums due to Copenhagen under the payment schedule (article 2.1), the full amount is immediately due and Brescia shall pay a 5% penalty of the total fixed transfer compensation after 15 calendar days of payment delay. The sum payable shall be automatically paid with interest at a rate equal to 5%”.

7. Moreover, the Single judge took notice of the Claimant’s claim lodged against the Respondent in front of FIFA, maintaining that the Respondent owed it the total amount of EUR 1,207,520.83, corresponding to the last instalment of the transfer fee, i.e. EUR 950,000 and the contractual penalty for late payment.

8. Subsequently, the Single Judge took into account that the Respondent, in reply to the claim, did not dispute the outstanding amount, but held that the delay of said payment was caused by the outbreak of the COVID-19 pandemic, which led to a “force majeure situation” due to its financial impact on the Respondent and Italian Football in general.

9. Furthermore, the Single Judge duly noted that the Respondent requested to ignore the contractual penalty since the delay was caused to force majeure or to considerably reduce it.

10. Subsequently, the Single Judge turned his attention to the substance of the matter, and recapitulated that the parties agreed on a transfer fee of EUR 5,000,000, payable in five instalments. The third instalment fell due on 30 August 2020 and was undisputedly remitted late.

11. On account of the above, taking into account the content of art. 2.4 of the transfer agreement, the total amount fell due on 1 September 2020.

12. The Single Judge turned his attention to the argument of the Respodnent that the COVID-19 outbreak caused the delay and should be considered as force majeure situation.

13. In this context, the DRC first highlighted that the matter with reference number 20-00497 was decided with a decision dated 4 June 2020. Said claim dealt with the player’s claim for outstanding remuneration corresponding to a part of November 19, the full salaries from December 2019 until February 20, plus housing costs as from October 2019 to February 2020.

14. The members of the Chamber further pointed out that the current dispute deals with the claim for outstanding remuneration of the player and not the nature of the player’s termination dated 4 May 2020, as no claim for compensation for breach of contract was received by either party.

15. Having said that, the Single Judge wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

16. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt a club to fulfil its financial obligations.

17. In this context, the Single Judge considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

18. Further, the Single Judge addressed the matter of the penalty the parties contractually agreed upon per clause 2.4 of the transfer agreement.

19. After due deliberation, the Single Judge 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 respect, 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 it shall also be taken into consideration.

20. In the specific case at hand, the Single Judge deemed that a penalty of 5% of the amount, which the parties contractually agreed upon, is both proportionate and reasonable in the case at hand.

21. On account of all of the above, the Chamber decided that the penalty is valid and applicable in the present matter.

22. Consequently, the Single Judge decided to partially accept the Claimant’s claim and to reject the argumentation put forward by the Respondent in its defence.

23. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to pay the Claimant the total amount of EUR 950,000, corresponding to the last instalment of the transfer fee. Furthermore, since the Respondent remitted the instalments four and five late, the Single Judge decided that the Respondent has to pay the Claimant the contractual penalty of EUR 250,000.

24. Consequently, 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 the total amount of EUR 1,200,000.

25. In addition, taking into consideration the Claimant’s claim, the Single Judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of EUR 950,000 as of 16th day after the due date of the total amount, i.e. 16 September 2020.

26. In accordance with the long-standing jurisprudence of the Dispute Resolution Chamber and the Players’ Status Committee, no interest is granted for the contractual penalty.

27. What is more, 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 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.

29. 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.

30. 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 amounts, in accordance with art. 24bis par. 3 of the Regulations.

31. Finally, the Single Judge referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered.

III. DECISION OF THESINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

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

2. The Respondent, Brescia Calcio, has to pay to the Claimant, the following amount:

- EUR 950,000 as outstanding amount plus 5% interest p.a. as from 16 September 2020 until the date of effective payment;

- EUR 250,000 as penalty fee.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established 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 following consequences shall arise:

 1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

7. The decision is rendered free of costs.

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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