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 12 January 2021

Decision of the

Single Judge of the Players' Status Committee

Passed on 12 January 2021,

regarding a contractual dispute concerning the player Serhou Yadaly Guirassy

BY:

Stefano La Porta (Italy), Single Judge of the PSC

CLAIMANT:

FC KÖLN, Germany

Represented by Mr. Christian Keidel and Dr. Paul Fischer

RESPONDENT:

AMIENS SC, France

I.

I. FACTS OF THE CASEFACTS OF THE CASE

1. On 29 January 2019, the German club, FC Köln (hereinafter: the Claimant) and the French club, Amiens SC (hereinafter: the Respondent) signed an agreement according to which the player Serhou Yadaly Guirassy (hereinafter: the Player) was transferred from the Claimant to the Respondent for a total amount of EUR 5,500,000, payable as follows (hereinafter: the transfer agreement):

- EUR 2,000,000 by 30 September 2019;

- EUR 2,000,000 by 30 September 2020;

- EUR 1,500,000 by 30 September 2021.

2. Pursuant to the transfer agreement, the Respondent was responsible for payment of the solidarity contribution cf. art. 21 of the FIFA RSTP.

3. According to clause 9 of the transfer agreement: “This Agreement shall be subject to the law of the Federal Republic of Germany”

4. The transfer agreement bears no clause pertaining to default interest.

5. The Respondent defaulted payment of the 1st instalment under the transfer agreement, having paid EUR 1,900,000 only on 23 December 2019, receipt of which has been acknowledged by the Claimant.

6. On 17 April 2020, the Claimant put the Respondent in default of payment of EUR 30,427.44 corresponding to interest due on account of late payment by the Respondent, granting it with a deadline of 13 days to pay.

7. On 24 June 2020, the Claimant field the claim at hand before FIFA.

8. On 27 October 2020, FIFA informed the Claimant of the following: “With regard to your petition to receive payment of interest on the claimed amount and bearing in mind that the relevant amount has been fully paid by Amiens SC, we inform you that it is the practice of the Players’ Status Committee not to deal with claims which solely focus on the payment of interest. On account of the above, we regret having to inform you that FIFA does not appear to be competent to deal with the claim lodged by you.”

9. On 10 November 2020, the Claimant insisted in its claim.

10. On the same day, the FIFA administration invited the Respondent to file its position to the claim of the Claimant, and inter alia informed that the parties that “It would be up for the Players’ Status Committee to decide on the admissibility of FC Köln’s claim”.

11. The Claimant filed the claim at hand requesting payment of EUR 35,505.53 corresponding to the interest for the late payment of the 1st instalment of the transfer fee.

12. The Claimant claimed that its entitlement derives from clause 9 of the transfer agreement, and that according to German Law it is calculated as follows:

a. 2019 basic rate of 0.88% as per section 288 par. 2 of the German Civil Code;

b. Yearly interest rate of minus 0.88% plus 9 percentage points, arriving at 8.12%;

c. 8.12% multiplied by EUR 1,900,000 multiplied by 84 days of late payment equals EUR 35,505.53.

13. The Respondent did not reply to the claim.

II.

II. CCONSIDERATIONS ONSIDERATIONS OF THEOF THE SINGLE JUDGE OF THESINGLE JUDGE OF THE PLAYERS' STATUS PLAYERS' STATUS COMMITTEECOMMITTEE

a.

a. Competence Competence and applicable legal frameworkand applicable legal framework

14. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as 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 24 June 2020 2020 and submitted for decision on 12 January 2021. Taking into account the wording of art. 21 of the January 2021 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.

15. Subsequently, the Single Judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and par. 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition January 2021) he is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations, i.e. a German club and a French club.

16. Subsequently, 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 2 of the Regulations on the Status and Transfer of Player (edition January 2021), and considering that the present claim was lodged on 24 June 2020, the June 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b.

b. Burden of proofBurden of proof

17. 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, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

18. 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.

c. Merits of the dispute

19. His competence 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. However, the Single Judge emphasised that in the following considerations it 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

20. By doing so, the Single Judge took note of the fact that the Claimant is seeking payment of EUR 35,505.53 corresponding to the interest for the late payment of the first instalment of the transfer fee.

21. Subsequently, the Single Judge took into account that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Single Judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

22. Furthermore, as a consequence of the aforementioned consideration, the Single Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

23. Having said this, the Single Judge acknowledged that it stood undisputed that the payment of the first instalment of the transfer fee was made late. Additionally, the Single Judge took note that the transfer agreement provided by the Claimant bears no disposition by means of which the parties agreed on the application of interests in case of default or late payment by the Respondent. What is more, the single Judge was observant of the fact that the Claimant acknowledged having received the principal amount due by the Respondent in line with the transfer agreement – albeit after the original due date as stated above.

24. In this respect, the Single Judge outlined that according to the longstanding and well-established practice of the Players’ Status Committee, in the absence of a contractual stipulation foreseeing the application of interests in case of default or late payment, it shall not deal with the claim for interest only where the main amount has been paid. This has been the case for instance of Chara.

25. Additionally and for the sake of completeness, the Single Judge underlined that with regards to clause 9 of the transfer agreement, that the longstanding jurisprudence of the Players’ Status Committee denotes that the FIFA regulations prevail over another national law chosen by the parties. The Single Judge recalled, in line with this reasoning, that the objective of the Regulations on the Status and Transfer of Players, and the FIFA regulations in general, is to create a standard regulatory framework to which all actors within the football community are subject to and can trust. The Single Judge recalled that this approach has been confirmed in multiple occasion by the Court of Arbitration for Sport, and referred, for instance, to case CAS 4471 to confirm his assessment.

26. The Single Judge furthermore established that this objective would not be achievable if the FIFA bodies had to apply the national law of a specific party to each dispute brought before it. In this regard, he stressed that it is in the interest of football that the remuneration of a player or a club is based on uniform criteria and not on provisions of national legislation which may vary considerably from one country to another.

27. Therefore, the Single Judge considered that it is not appropriate in the matter at hand to apply specific aspects of a particular national law, but rather the Regulations, the general principles of law and, where it exists, the well-established jurisprudence of the PSC. Under these, and in view of the aforementioned considerations, the Single Judge considered that the Claimant is not entitled to the claimed value insofar as it lacks a contractual basis.

28. Consequently, the Single Judge decided to reject the Claimant’s claim.

d.

d. Costs

29. The Single Judge referred to article 18 par. 1 lit. i) of the Procedural Rules, according to which “For any claim or counterclaim lodged between 10 June 2020 and 31 December 2020 (both inclusive), no procedural costs shall be levied”. Since the claim was lodged on 24 June 2020, he decided that no procedural costs were to be imposed on the parties.

30. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

III.

III. DECISIONDECISION OF THEOF THE SINGLE JUDGE OF THESINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEEPLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, FC KÖLN, is rejected.

2. 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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