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 22 September 2020

Decision of the

Single Judge of the PSC

passed on, 22 September 2020

regarding a dispute concerning the transfer of the player Kevin FORTUNE

BY:

Castellar Guimarães Neto (Brazil), Single Judge of the PSC

CLAIMANT:

Esperance Sportive Troyes Aube Champagne, France

RESPONDENT:

Tractor Sazi FC, Iran

I. Facts

1. On 21 August 2019, the parties concluded an agreement for the transfer of the player Fortune from the Claimant to the Respondent.

2. Clause 3 of the contract stipulated the following:

“TRACTOR SAZI FC agrees to pay to the transferor, by way of transfer compensation for the player, a sum of 400.000 (four hundred thousand) euros to be paid as follows:

• € 150.000 (one hundred and fifty thousand) within 5 days after the transfer

• € 250.000 {two hundred and fifty thousand) before the 30th June 2020.”

3. On 30 August 2019, the claimant sent a default notice to the respondent.

4. The claimant sent additional notices on 19 September, 4 November, 5 December, 17 December 2019 and 14 and 27 January 2020.

5. On 3 July 2020, the claimant sent a final default notice requesting the payment of the total amount of EUR 400,000 within 10 days.

6. On 7 August 2020, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of a total outstanding amount of EUR 400,000.

7. In its reply to the claim, the Respondent acknowledged its debt towards the Claimant.

8. However, the Respondent referred to “the USA embargos against Iran”, as well as to “the Covid-19 pandemic”. As a result, the Respondent underlined that “from the foregoing it is obvious that football clubs are being completely affected and struggling under hard condition in Iran.”

9. In addition, the Respondent considered that the conditions for the application of art. 12 bis have not been met, particularly since “the second instalment was clearly not delayed for more than 30 days, when the Claimant sent the Notification letter to the Respondent (Claimant’s Exhibit no. 14), on 3 July 2020.

10. Furthermore, the Respondent argued that “as can be seen in the wording of art. 3 of the agreement the parties did not establish for a net payment of these amounts. So, in accordance with the long-standing FIFA jurisprudence on this matter, every contract between clubs that does not stipulate if a payment is net or gross the which prevails is the principle that monies must be considered to be payable gross.”

11. Moreover, the Respondent highlighted that the Claimant did not request interest, and as such requested to “not add interest in this case, otherwise the decision can be judged “ultra petita”, which could make this decision null and void.”

II. Considerations of the Single Judge of the PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Chamber or DRC) analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 6 August 2020. Taking into account the wording of art. 21 of the June 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.

2. Subsequently, the Single Judge of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. b) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with matters which concern employment-related disputes with an international dimension between players and clubs.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 6 August 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Single Judge of the PSC entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. Within this context, the Single Judge noted that, on 21 August 2019, the parties concluded an agreement for the transfer of the player Fortune from the Claimant to the Respondent and that Clause 3 of said stipulated the following:

“TRACTOR SAZI FC agrees to pay to the transferor, by way of transfer compensation for the player, a sum of 400.000 (four hundred thousand) euros to be paid as follows:

• € 150.000 (one hundred and fifty thousand) within 5 days after the transfer

• € 250.000 {two hundred and fifty thousand) before the 30th June 2020.”

6. Subsequently, the Single Judge observed that Claimant lodged a claim before FIFA against the Respondent, and requested the payment of a total outstanding amount of EUR 400,000 corresponding to the entire transfer fee.

7. Thereafter, the Single Judge noted that, in its reply, the Respondent acknowledged its debt towards the Claimant, alleging that it suffered from financial difficulties related to the effects of the COVID-19 pandemic as well as the international situation.

8. In this respect, however, the Single Judge of the PSC considered that, in line with its well-established jurisprudence, a club’s financial difficulties cannot be considered a valid justification for non-compliance with its essential contractual obligations deriving from the signature of a binding agreement. Consequently, the Single Judge of the PSC decided that this argumentation of the Respondent cannot be followed on this point, as he noted that, in this particular matter, the Respondent had outstanding financial obligations towards the Claimant since at least August 2019.

9. Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge of the PSC established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 400,000, as agreed in the contract concluded on 21 August 2019.

10. Furthermore, taking into account the previous considerations, the Single Judge of the PSC 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.

11. In this regard, the Single Judge of the PSC 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.

12. Therefore, bearing in mind the above, the Single Judge of the PSC 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.

13. Finally, the Single Judge of the PSC 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.

14. In continuation, the Single Judge of the PSC 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 Dispute Resolution Chamber relating to disputes regarding solidarity mechanism 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.

15. In this respect, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, 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 the Single Judge of the PSC

1. The claim of the Claimant, Esperance Sportive Troyes Aube Champagne, is accepted.

2. The Respondent, Tractor Sazi FC, has to pay to the Claimant, the following amount:

- EUR 400,000 as outstanding amount.

3. 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.

4. 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).

5. In the event that the amount due 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.

6. This decision is pronounced without costs.

For the Single Judge of the PSC:

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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FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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