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 9 March 2021

Decision of the

Single Judge of the Players' Status Committee

passed on 9 March 2021,

regarding a dispute concerning the transfer of the player Danjiel Aleksic

BY:

José Luis Andrade (Portugal), Single Judge of the PSC

CLAIMANT:

FC St. Gallen, Switzerland

Represented by Ramin Pandji & Adrian Zingg

RESPONDENT:

Yeni Malatyaspor, Turkey

Represented by Burak Cakir

I. FACTS OF THE CASE

1. On 14 June 2018, the Swiss club, FC St. Gallen (hereinafter: the Claimant) and the Turkish club, Yeni Malatyaspor (hereinafter: the Respondent) concluded an agreement (hereinafter: transfer agreement) regarding the permanent transfer of the player Danijel Aleksic (hereinafter: player) from the Claimant to the Respondent.

2. According to the transfer agreement, the Respondent undertook to pay the Claimant a transfer fee in the amount of EUR 120,000, payable as follows:

- EUR 60,000 on 15 July 2018;

- EUR 60,000 on 30 October 2018.

3. Furthermore, the transfer agreement reads as follows:

“2.3 The Purchase will make the following bonus-payments at the following events:

[…]

b. Payment of EUR 20’000.- if the Purchaser reaches the 5th rank in the league in the season 2018/2019.

[…]”.

4. Moreover, art. 4.1 (d) of the transfer agreement establishes: “The Purchaser hereby represents and warrants to FCSG that it will pay a late payment penalty of EUR 6,000 per month if an amount due to FCSG is not paid at the due date by the Purchaser.”

5. On 28 June 2019, the Claimant put the Respondent in default, requesting payment of EUR 20,000 in connection with art. 2.3. (b.) of the transfer agreement within 20 days.

6. On 29 January 2020, the Claimant put the Respondent in default again, requesting payment of EUR 20,000.

7. On 21 February 2020, the Respondent remitted the amount of EUR 9,988 to the Claimant.

8. On 1 December 2020, the Claimant lodged a claim against the Respondent in front of FIFA, requesting payment of the following monies:

- EUR 10,012 in connection with art. 2.3. (b.) of the transfer agreement;

- EUR 99,999 in connection with art. 4.1. (d.) of the transfer agreement.

-

9. In its claim, the Claimant held that it put the Respondent in default, but only received a partial payment of EUR 9,988 on 21 February 2020.

10. In its reply to the claim, the Respondent acknowledged that the bonus in question is indeed due to the Claimant and argued that due to an “error of the club accounting department” only a partial payment was remitted.

11. As to the penalty agreed upon in the transfer agreement, the Respondent held that such penalty was “determined for the total transfer fee” and shall not be valid for bonus amounts.

12. Further, the Respondent brought forward that such penalty is disproportionate to the claimed amount and should therefore be disregarded or at least reduced.

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 1 December 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 February 2021) 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 1 December 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 Chamber proceeded with an analysis of the circumstances surrounding the present matter, the parties’ arguments as well the documentation on file, bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

6. In continuation, the Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement on 14 June 2020 regarding the transfer of the player from the Claimant to the Respondent, according to which the Respondent undertook to pay the Claimant, inter alia, the amount of EUR 20,000 in case the Respondent “reaches the 5th rank in the league in the season 2018/2019 […]”.

7. The Single Judge further took note of the fact that the parties agreed in art. 4.1. (d) of the transfer agreement that “The Purchaser hereby represents and warrants to FCSG that it will pay a late payment penalty of EUR 6,000 per month if an amount due to FCSG is not paid at the due date by the Purchaser.”.

8. Moreover, the Single judge took notice of the Claimant’s claim lodged against the Respondent in front of FIFA, requesting payment of EUR 10,012 as part of the the conditional payment due to the ranking of the Respondent and EUR 99,999 as penalty resulting from art. 4.1. (d) of the transfer agreement.

9. The Respondent, for its part, acknowledged that the Claimant is entitled to the conditional payment and held that it only remitted a partial payment due to an internal error. Furthermore, the Respondent rejected the application of the penalty as it was disproportionate.

10. Having said this, the Single Judge acknowledged that, in accordance with the transfer agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 20,000 due to its ranking the Turkish Super League in the season 2018/2019. In this regard, the Single Judge acknowledged the partial payment in the amount of EUR 9,988 remitted by the Respondent on 21 February 2020.

11. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the amount of EUR 10,012, corresponding to the conditional payment agreed upon in the transfer agreement.

12. 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 amount of EUR 10,012.

13. Subsequently, the Single Judge focussed his attention on the penalty clause contained in art. 4.1 (d) of the transfer agreement, which established that: “The Purchaser hereby represents and warrants to FCSG that it will pay a late payment penalty of EUR 6,000 per month if an amount due to FCSG is not paid at the due date by the Purchaser.”

14. The Single Judge pointed out that said clause appears to be a hidden interest clause establishing a penalty of EUR 6,000 per month. Such amount corresponds to 5% of the total transfer fee (i.e. EUR 120,000) per month, i.e. to a yearly interest of 60%. The Single Judge concluded that such interest clause was explicitly and contractually agreed upon between the parties and is therefore not per se inapplicable.

15. In line with the jurisprudence of the Dispute Resolution Chamber and the Players’ Status Committee, as well as CAS jurisprudence and in accordance with Swiss Law, the Single Judge had no other option but to conclude that a yearly interest of 60% was disproportionate, and decided to reduce it to a rate of 18% p.a., a rate that shall be applicable as of 1 June 2019, taking into account the partial payment of the Respondent on 21 February 2020.

16. 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.

17. 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.

18. 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.

19. Moreover, 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.

20. The Single Judge further rejected any other request made by the Claimant.

21. 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.

22. 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. Therefore, the Single Judge established that the present decision shall be rendered without costs.

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

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

2. The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the amount of EUR 10,012 as outstanding amount plus 18% interest p.a. as from 22 February 2020 until the date of effective payment.

3. Furthermore, the Respondent has to pay 18% interest p.a. on the amount of EUR 20,000 as from 1 June 2019 until 21 February 2020.

4. Any further claims of the Claimant are rejected.

5. 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.

6. 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).

7. 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.

8. This decision is rendered without 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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