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 27 March 2020
Decision of the
Single Judge of the Players' Status Committee
Passed on 27 March 2020,
regarding a contractual dispute concerning the player Vitorino Gabriel Pacheco
Antunes
BY:
Vitus Derungs (Switzerland), Single Judge of the PSC
CLAIMANT / COUNTER-RESPONDENT:
Málaga CF, Spain
RESPONDENT / COUNTER-CLAIMANT:
FC Dynamo Kyiv, Ukraine
I. FACTS OF THE CASE
1. On 2 February 2015, Málaga CF (hereinafter: Málaga) and FC Dynamo Kyiv (hereinafter:
Dynamo) concluded an agreement for the definitive transfer of the player Vitorino Gabriel
Pacheco Antunes (hereinafter: player) from Málaga to Dynamo with the obligation for
Dynamo to pay a total transfer fee of EUR 5,600,000 in instalments as follows:
i. EUR 2,000,000 within five working days at the latest from the moment of
receipt of the ITC of the Player by the FFU;
ii. EUR 3,600,000 by means of 18 monthly instalments of EUR 200,000 each,
payable on the 1st day of the calendar month, starting from 1 March 2015.
2. According to clause 3.1 of the transfer agreement, the parties agreed upon an additional
conditional fee of EUR 500,000 in case the following events would occur:
i. “Dynamo wins in the Football Championship of Ukraine according to the results
in a full season (becomes Champions of Ukraine) and subject to the condition
that the Player has participated in at least 70% out of the total number of
matches of the full season as a player of the main squad of Dynamo (amongst
the first 11 players, starting a match);
or
ii. of qualification of Dynamo to the group stage of the UEFA Champions League
(subject to the condition that the Player has participated in at least 70% out of
the total number of matches of the full previous league as a player of the main
squad of Dynamo (amongst the first 11 players, starting a match), as well as
subject to the condition that Dynamo has not paid yet earlier to the Club
appropriate additional transfer compensation for the Championship in the
previous season (which provides automatic qualification to the group stage of
the UEFA Champions League of the next season).
To avoid any misunderstanding the parties confirm that winning of
Championship title in Ukraine and, accordingly, automatic qualification to the
group stage of the UEFA Champions League of the next season will be
considered as a single achievement.
The abovementioned additional payment shall be executed within 10 banking
days from the moment of official occurrence of a corresponding fact.
The parties have also agreed that the maximum amount of payments for the
additional conditional transfer compensation shall not exceed EUR 500,000
during a season and EUR 1,500,000 in the period from season 2014/2015 to
season 2017/2018 (or in case of qualification to the group stage of the UEFA
Champions League in the season 2018/2019)”.
3. According to clause 4.2 of the transfer agreement, in case of a delay of execution by
Dynamo of the payments, Dynamo shall be obliged to additionally pay to Málaga an interest
of 7% per annum.
4. On 16 April 2016, the parties concluded an additional agreement setting new due dates
for certain instalments as follows:
“(…)
2. The Parties have agreed that the remaining four payments of the fixed transfer
compensation, which are due on 1 day of the calendar month from 1 May 2016 until 1
August 2016, shall be executed by Dynamo on 1 day of the calendar month from 1 July
2016 until 1 October 2016.
3. The Parties also have agreed that in case of a delay of any of the payments, stipulates in
the cl. 2 of the present Additional Agreement, for more than 30 days, the Club shall have
the right to request immediate payment of any and all amounts of the fixed transfer
compensation still due within 10 days from the moment of notification of such request to
Dynamo.
(…)
6. All other provisions of the Contract remain unchanged”.
II. PROCEEDINGS BEFORE FIFA
5. On 11 May 2018, Málaga filed the claim at hand before FIFA. The parties’ respective
positions are detailed below.
a. The claim of Málaga
6. Málaga requested payment of the amount of EUR 50,480.17 in connection with late
payments resulting from both agreements concluded between the parties, as follows:
Instalment Solidarity
contribution
Net
instalment
Due date Amount paid Date of
payment
Difference
days
Interest (7%
p.a.)
EUR 200,000 EUR 10,000 EUR 190,000 1/03/2015 EUR 190,000 19/03/2015 19 701.94
EUR 200,000 EUR 10,000 EUR 190,000 1/04/2015 EUR 190,000 22/04/2015 22 812.78
EUR 200,000 EUR 10,000 EUR 190,000 1/05/2015 EUR 190,000 19/05/2015 19 701.94
EUR 200,000 EUR 10,000 EUR 190,000 1/06/2015 EUR 190,000 09/06/2015 9 332.50
EUR 200,000 EUR 10,000 EUR 190,000 1/07/2015 EUR 45,000 17/07/2015 17 148.75
EUR 45,000 17/07/2015 17 148.75
EUR 45,000 20/07/2015 20 175.00
EUR 12,992 21/07/2015 21 53.05
EUR 42,008 27/07/2015 27 220.54
EUR 200,000 EUR 10,000 EUR 190,000 1/08/2015 EUR 190,000 17/08/2015 17 628.06
EUR 200,000 EUR 10,000 EUR 190,000 1/09/2015 EUR 190,000 22/09/2015 22 812.78
EUR 200,000 EUR 10,000 EUR 190,000 1/10/2015 EUR 43,250 19/10/2015 19 159.78
EUR 57,643 21/10/2015 21 235.38
EUR 44,504 26/10/2015 26 224.99
TOTAL INTEREST: EUR 50,480.17
b. Position of Dynamo and counterclaim
7. In reply to the claim, Dynamo stressed that it paid the complete amount of transfer
compensation due to Málaga. Furthermore, it held that due to the “Ukrainian financial crisis
2014 caused by the military aggression of Russia on the East of Ukraine”, payments
exceeding EUR 50,000 to foreign countries had to be assessed by the national financial
controlling authority. Therefore, some of the payments were delayed due to force majeure.
EUR 44,603 26/10/2015 26 225.49
EUR 200,000 EUR 10,000 EUR 190,000 1/11/2015 EUR 25,000 19/01/2016 80 388.89
EUR 45,800 22/01/2016 83 739.16
EUR 33,000 25/01/2016 86 551.83
EUR 46,100 26/01/2016 87 779.86
EUR 40,100 27/01/2016 88 686.16
EUR 200,000 EUR 10,000 EUR 190,000 1/12/2015 EUR 5,900 27/01/2016 58 66.54
EUR 45,800 29/01/2016 60 534.33
EUR 42,000 29/01/2016 60 490.00
EUR 45,400 03/02/2016 65 573.81
EUR 45,700 03/02/2016 65 577.60
EUR 5,200 04/02/2016 66 66.73
EUR 200,000 EUR 10,000 EUR 190,000 1/01/2016 EUR 44,000 23/03/2016 83 710.11
EUR 44,000 28/03/2016 88 752.89
EUR 44,000 28/03/2016 88 752.89
EUR 44,000 29/03/2016 89 761.44
EUR 14,000 29/03/2016 89 242.28
EUR 200,000 EUR 10,000 EUR 190,000 1/02/2016 EUR 30,000 29/03/2016 58 338.33
EUR 44,000 29/03/2016 58 496.22
EUR 43,500 01/04/2016 61 515.96
EUR 43,600 04/04/2016 64 542.58
EUR 28,900 05/04/2016 65 365.26
EUR 200,000 EUR 10,000 EUR 190,000 1/03/2016 EUR 190,000 23/05/2016 84 3,103.33
EUR 200,000 EUR 10,000 EUR 190,000 1/04/2016 EUR 190,000 24/06/2016 85 3,140.28
EUR 200,000 EUR 10,000 EUR 190,000 1/07/2016 EUR 190,000 27/07/2016 26 960.56
EUR 200,000 EUR 10,000 EUR 190,000 1/08/2016 EUR 190,000 06/09/2016 36 1,330.00
EUR 200,000 EUR 10,000 EUR 190,000 1/09/2016 EUR 100,000 10/10/2016 39 758.33
EUR 90,000 18/10/2016 47 822.50
EUR 200,000 EUR 10,00 EUR 190,00 10/10/2016 EUR 60,000 18/10/2016 17 198.33
EUR 130,000 18/11/2016 48 1,213.33
EUR 500,000 EUR 25,000 EUR 475,000 10/06/2016 EUR 200,000 23/12/2016 196 7,622.22
EUR 300,000 31/01/2017 235 13,708.33
8. Furthermore, Dynamo maintained that Málaga made a mistake in calculating the claimed
interest for the additional compensation in the amount EUR 500,000, as in the additional
agreement the due date of 1 October 2016 was defined. Therefore, only EUR 10,174.86
could possibly be claimed as interest in connection with the championship and the
qualification for the Champions League.
9. Notwithstanding the above, Dynamo held that in the additional agreement, the provision
regarding interest for late payment resulting from the transfer agreement was replaced with
the right to claim immediate payment of the full amount. According to Dynamo, Málaga
never claimed the full amount and therefore cannot claim interest on “insignificant delays”
occurred.
10. Moreover, Dynamo argued that the first 14, out of a total of 18 payments, are time-barred.
11. Additionally, Dynamo lodged a counterclaim against Málaga for payment of EUR 25,000
since it omitted to deduct the solidarity contribution in connection with its payment of the
additional fee (EUR 500,000). In this regard, Dynamo submitted documents regarding
payments related to the relevant solidarity payments of EUR 25,000 to the respective
training clubs.
c. Málaga’s replica and position as to the counterclaim
12. In its reply to the counterclaim, Málaga reiterated its position and rejected Dynamo’s
counterclaim. Málaga argued that the additional agreement did not replace the agreement
on interest from the transfer agreement since the additional agreement stated that “all
other provisions of the contract remain unchanged”.
13. Furthermore, as to the counterclaim, Málaga held that said claim was time-barred since it
was only completed in March 2019. Further, the Málaga pointed out that Dynamo did not
submit enough evidence regarding the payments of solidarity contribution.
d. Dynamo’s duplica
14. Dynamo reiterated its position and rejected Málaga’s arguments. It pointed out having
lodged the counterclaim already on 4 August 2018.
III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS
COMMITTEE
a. Competence and applicable legal framework
15. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge)
analysed whether he was competent to deal with the case at hand. In this respect, he took
note that the present matter was presented to FIFA on 11 May 2018 and submitted for decision on 27 March 2020. Taking into account the wording of art. 21 of the November
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.
16. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed
that in accordance with art. 23 par. 1 and 4 in combination 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 matter at stake, which concerns a contractual dispute between a Spanish club
and a Ukrainian club.
17. Subsequently, the Single Judge analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Player (edition March 2020), and
considering that the present claim was lodged on 11 May 2018, the January 2018 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
18. 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. Likewise, the Single Judge stressed
that in accordance with art. 12 par. 4 of the Procedural Rules, he may consider evidence
not filed by the parties.
19. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c. Merits of the dispute
20. Is competence and the applicable regulations having been established, the Single Judge
entered into the merits of the dispute. 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, he emphasised that in the following considerations he will
refer only to the facts, arguments and documentary evidence, which it considered pertinent
for the assessment of the matter at hand.
i. Main legal discussion and considerations
21. The foregoing having been established, the Single Judge moved to the substance of the
matter, and first took note of the fact that Dynamo had dismissed part of Málaga’s claim
on account of the fact that it would be barred by the statutes of limitation. Precisely,
Dynamo deems that the claim in relation to interest for late payment of the first 14
instalments out of 18 as per the transfer agreement is time-barred.
22. In this context, the Single Judge referred to art. 25 par. 5 of the Regulations, according to
which he shall not hear any case subject to these regulations if more than 2 years have
elapsed since the event giving rise to the dispute. The Single Judge emphasised that the
question as to whether a claim is barred by the statute of limitations is one which he is
empowered to rule upon ex officio.
23. The Single Judge went on to determine the event giving rise to the dispute and concluded
that such event consists in the non-payment of the instalments agreed upon in the transfer
agreement and the additional agreement on the respective due dates.
24. In view of the above, the Single Judge concurred that, since Málaga’s claim was lodged on
11 May 2018, any claim related to payments due before 11 May 2016 is time-barred.
Consequently, he shall only decide upon the part of the claim which relates to instalments
due after 11 May 2016, this is, the claim relating to interest for late payment of the
instalments due on 1 July, 1 August and 1 September 2016 in accordance with the
additional agreement, together with the claim relating to interest for late payment of the
additional conditional transfer compensation in the amount of EUR 500,000.
25. Likewise, Málaga has also dismissed Dynamo’s counterclaim on account of the fact that it
would be prescribed. In this regard, the Single Judge first clarified that, contrary to Málaga’s
assumption, Dynamo’s counterclaim was in fact lodged on 4 August 2018.
26. Furthermore, the Single Judge emphasised that the event giving rise to the dispute is the
due date of the EUR 500,000 due as additional conditional transfer compensation, i.e. 10
days after Dynamo became championship in the 2015/2016 season. In this regard, the
Single Judge determined that Dynamo became champion on 14 May 2016. Therefore, the
correct payment of the additional conditional transfer compensation, i.e. 95% of EUR
500,000, should have been performed on 24 May 2016. The Single Judge thus determined
that 24 May 2016 shall be considered the starting point of the statute of limitations.
27. Considering that Dynamo’s counterclaim was filed on 4 August 2018, i.e. more than 2 years
following the event giving rise to the dispute, the Single Judge concluded that he cannot
entertain such counterclaim and that it is inadmissible.
28. With the foregoing being established, the Single Judge moved to the substance of the
contractual dispute between the parties.
29. Málaga’s claim essentially concerns the payment of interest for late payment of the agreed
instalments in accordance with the two agreements concluded.
30. In this regard, it remains uncontested that Dynamo performed the pertinent payments late.
The Single Judge recalled that Dynamo’s arguments are three-fold: i) it deems that the acceleration clause in the additional agreement superseded the clause relating to interest
for late payment contained in the transfer agreement; ii) the late payment of the instalments
due was the result of a situation of force majeure, and iii) by means of the additional
agreement, the parties had agreed upon a new date of payment of the conditional transfer
compensation, i.e. 1 October 2016.
31. Having considered these arguments, the Single Judge found that he cannot sustain either
of them. In particular, the Single Judge disagreed on the question as to whether the
acceleration clause implied the non-application of clause 4.2 of the transfer agreement.
Indeed, clause 6 of the additional agreement explicitly states that all other clauses of the
transfer agreement remained. Should the parties have intended to exclude the application
of clause 4.2 of the transfer agreement which pertains to interest for late payment, they
should have explicitly included it in the additional agreement.
32. In view of the above, the Single Judge established that clause 4.2 of the transfer agreement
remained applicable despite the conclusion of the additional agreement. Therefore, any
delay in the payment of the newly agreed instalments under the additional agreement
would result in the application of a 7% interest rate per annum, as stipulated in clause 4.2
of the transfer agreement.
33. In continuation and as to the argument of force majeure, the Single Judge found that
Dynamo had not provided sufficient evidence that the financial crisis which it referred to
had impacted its ability to perform payments towards its creditors. Furthermore, the Single
Judge emphasised that the transfer agreement had been concluded on 2 February 2015,
this is, during the time when Dynamo alleged it was going through financial hardship; yet,
Dynamo voluntarily concluded the transfer agreement and included the litigious clause
relating to interest for late payment. Thus, according to the Single Judge, Dynamo cannot
use the argument of force majeure as an excuse to escape from its financial obligations.
34. Finally, the Single Judge could not follow Dynamo’s argumentation that the parties had
postponed the payment of the conditional transfer compensation in the amount of EUR
500,000 to 1 October 2016. Indeed, the Single Judge verified that the additional agreement
pertains only to the payment of the “fixed transfer compensation” and not to the
conditional transfer compensation. Therefore, such argument must be rejected.
35. The foregoing considerations led the Single Judge to decide that, in accordance with the
legal principle of pacta sunt servanda, Dynamo is liable to pay interest for late payment on
the instalments initially due on 1 July, 1 August and 1 September 2016 as well as the on
the additional conditional transfer compensation.
36. This being said, the Single Judge stated that, with regard to the additional conditional
transfer compensation, interest should apply only on 95% of the EUR 500,000, considering
that solidarity contribution was due on that amount. Thus, the Single Judge decided that it
should deduct the amount of EUR 25,000 (5% of EUR 500,000) to the amount of EUR
300,000, which was paid in the context of the conditional transfer compensation on 31 January 2017. Thus, instead of the amount of EUR 13,708.33 claimed as interest for late
payment in relation to the late payment of EUR 300,000, the Single Judge decided that
Dynamo is liable to pay EUR 12,393.83, which represents 7% p.a. on the amount of EUR
275,000 between 10 June 2016, date on which Málaga deems the relevant payment was
due, and 31 January 2017, date on which the payment was performed.
37. Furthermore, with respect to the interest claimed for the other instalments previously
mentioned as well as the first payment in the amount of EUR 200,000 in relation with the
conditional transfer compensation, the Single Judge held that Málaga’s claim is accurate
and should therefore be upheld (i.e. the sum of EUR 960.56, EUR 1,330.00, EUR 758.33,
EUR 822.50, EUR 198.33, EUR 1,213.33 and EUR 7,622.22, cf. table in par. 6 above).
38. In conclusion, Dynamo shall pay Málaga the total amount of EUR 25,298.50 as interest for
late payment.
ii. Compliance with monetary decisions
39. Finally, taking into account the consideration under number 17. 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.
40. In this regard, the Single Judge highlighted 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.
41. Bearing in mind the above, the Single Judge decided that, in the event that Dynamo does
not pay the amounts due to Málaga within 45 days as from the moment in which Málaga
communicates the relevant bank details to Dynamo, provided that the decision is final and
binding, 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.
42. 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.
43. Lastly, the Single Judge concluded his deliberations by rejecting any other requests for relief
made by any of the parties.
d. Costs
44. 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. Furthermore, the costs of the proceedings 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.
45. Taking into account that that the claim of Málaga is partially time-barred, but that the
responsibility of the failure to comply with the payment of the amounts as agreed in the
transfer agreement and the additional agreement in a timely manner can entirely be
attributed to Dynamo, the Single Judge concluded that both parties shall bear a part of the
costs of the current proceedings before FIFA. 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 75,480.17. Consequently, the Single Judge concluded
that the maximum amount of costs of the proceedings corresponds to CHF 10,000.
46. In conclusion, the Single Judge decided that, considering the level of factual and legal
complexity of the present matter as well as the conduct of the parties, procedural costs in
the total amount of CHF 6,000 shall be paid by the parties:
CHF 4,000 by Dynamo,
CHF 2,000 by Málaga.
IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS
COMMITTEE
1. The claim of the Claimant / Counter-Respondent, Málaga CF, is partially accepted, insofar
admissible.
2. The Respondent / Counter-Claimant ,FC Dynamo Kyiv, has to pay to the Claimant / Counter-
Respondent the amount of EUR 25,298.50.
3. Any further claim of the Claimant / Counter-Respondent is rejected.
4. The counterclaim of the Respondent / Counter-Claimant is inadmissible.
5. The Claimant / Counter-Respondent is directed to inform the Respondent / Counter-
Claimant, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision of the relevant bank account to which the Respondent /
Counter-Claimant must pay the amount mentioned under point 2. above.
6. The Respondent / Counter-Claimant 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).
7. In the event that the amounts due plus interest in accordance with point 2 above are not
paid by the Respondent / Counter-Claimant within 45 days as from the notification by the
Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-
Claimant, the Respondent / Counter-Claimant 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).
8. The ban mentioned in point 7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9. 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.
10. The costs of the proceedings in the amount of CHF 6,000 are to be paid as follows:
10.1 The amount of CHF 4,000 by the Respondent / Counter-Claimant directly to the
following bank account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
10.2 The amount of CHF 2,000 by the Claimant / Counter-Respondent. Given that
the latter already paid an advance of costs of CHF 2,000 at the beginning of the
present proceedings, no further payment is necessary.
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:
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