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 6 October 2020
Decision of the
Single Judge of the PSC
passed on 6 October 2020
regarding a contractual dispute concerning the player Claudir Marini Junior
BY:
Geoff Thompson (England), Chairman
CLAIMANT:
Colorado AC, Brazil
Represented by CCLA Advogados
RESPONDENT:
Padideh Khorasan, Iran
I. Facts of the case
1. On 19 July 2018, the Brazilian club, Colorado AC (hereinafter: “Claimant”) and the Iranian club, Padideh Khorasan (hereinafter: “Respondent”), together with the Brazilian player Claudir Marini Junior (“the Player”), signed the “Contract of temporary transfer agreement of professional football athlete” (the “Contract”), for the temporary transfer of the Player from the Claimant to the Respondent during the period comprised between 18 July 2018 until 30 May 2019.
2. Clause 2 of the Contract reads as follows:
“the referred temporary transfer of the PLAYER from [the Claimant] to [the Respondent] shall be from July 18th 2018 until May 30th 2019”.
3. Additionally, Clause 1.3 of the Contract reads as follows:
“1.3 The parties shall input in the TMS of FIFA the data relating to the present transfer, in order to allow the issuance of the PLAYER’S International Transfer Certificate (“ITC”) by the CBF immediately after the signature of this agreement by the parties.”
4. Furthermore, Clause 3 et seq. of the Contract reads as follows (quoted verbatim):
“3.1 [The Respondent] shall pay to [the Claimant] a NET sum of US$ 70,000 (Seven Thousand American Dollars) NET in consideration of the present loan.
3.2 The payment of the amount referred in the Clause 3.1 above shall be pay as below:
3.3. [The Respondent] must pay 10000USD to [the Claimant] club for ITC card. according to their agreement m must pay 5000USD in cash and 5000USD one month later but [the Claimant] club must embark exportation ITC card for player after gets first step.
3.4 In the event [the Respondent] fails to make the payment in the date herein agreed, a fine of 10% (ten per cent) plus interest will accrue on the full amount outstanding at the rate of 12% (twelve per cent) annual rate from the due date until the date of payment. Partial payments are applied first against interest accrued to the date of payment and any balance against the outstanding amount.
3.5 After the clearing of payment herein agreed under clause 3.2.1, [the Claimant] shall authorize the issuance of the player’s ITC through the FIFA TMS.”
5. Moreover, Clause 18.1. of the Contract reads as follows:
“The Agreement shall come into effect upon signature (and, if applicable, seal – stamp) or the parties”.
6. Lastly, Clause 18.8 of the Contract reads as follows:
“The enforceability and validity of this Agreement is conditional upon the PLAYER passing all medical examinations, which shall be carried out by doctors agreed by the club”.
7. On 7 September 2018, the Respondent entered a transfer instruction in the Transfer Matching System (“TMS”) in order to engage the Player from the Claimant.
8. On 8 September 2018, the Claimant entered a transfer instruction in TMS in order to release the player to the Respondent. TMS paired both instructions and notified the Parties that matching exceptions had been found as the term dates of the Contract had been reported differently by the Respondent.
9. On the same date, the Respondent allegedly made a cash deposit of USD 18,250 to an unspecified beneficiary.
10. On 15 September 2018, the Respondent resolved the matching exceptions in TMS.
11. On 16 September 2018, the IRIFF requested the ITC from the CBF.
12. On 17 July 2020, the Claimant lodged a claim before FIFA against the Respondent.
13. According to the Claimant, although both Parties signed the Contract, the Respondent did not request immediately the Player´s ITC.
14. On 9 September 2018, the Claimant states to had carried out all the necessary steps through TMS for the ITC’s issuance. However, the Claimant states that the Respondent did not make the necessary steps in TMS until 16 September 2018. As a consequence, the request for the Player’s ITC was rejected since the request was made outside of the new association’s registration period.
15. The Claimant deems that, despite the ITC denial, this fact cannot be considered as just cause for the non-compliance of the other contractual obligations by the Respondent towards the Claimant, especially in relation to the financial obligations set between the Parties. Indeed, the Claimant points out that the denial was a result of the Respondent’s actions or rather its lack of action within the deadline for registration of new players.
16. Moreover, the Claimant refers to clause 1.3 of the Contract, whereby it was the parties’ obligation to input all the necessary information in TMS for the issuance of the player’s ITC. Notwithstanding, based on clause 3.5 of the Contract, the Claimant would be required to release the player’s ITC only after receiving the second instalment of the first part of the transfer fee in the amount of USD 5,000. Instead of that, the Claimant states that “in good faith instructed the ITC request, even without having received the rest of the loan fee”.
17. On this basis, the Claimant is of the opinion that, it is evident that the release of player’s ITC outside the registration period was caused, exclusively, by the Respondent’s actions and, therefore, this does not constitute a valid reason for the non-compliance of the terms set at the Contract.
18. Additionally, the Claimant understands that the early unilateral termination of the Contract by the Respondent was expressly prohibit as per clause 8.2 of the Contract.
19. Furthermore, the Claimant states that as a result of the Respondent’s failure to comply with its obligations, the Player returned to Brazil and filed a claim against the Claimant before the Brazilian Labour Court requesting the termination of his employment agreement.
20. The non-payment of the transfer fee by the Respondent led the Claimant to send a notice to the Respondent requesting the payment of overdue payables in the amount of USD 65,000, in which the Respondent was granted a 10-days deadline for the payment. In this regard, the Claimant emphasised that, even though this deadline had not ended at the time of filing the claim, it had no other option other than to present the claim due to the 2-years period deadline established at article 25.5 of the RSTP. Furthermore, the Claimant submitted that the default notice remained unanswered.
21. As to the compensation claimed, the Claimant states that the Respondent is in default of USD 65,000. Furthermore, the Claimant refers to clause 3 of the Contract, according to which, in the event the Respondent fails to make the payment in the date established in the contract, a fine of 10% plus interest would accrue on the full amount outstanding at the rate of 12% per annum from the due date until the date of payment.
22. In addition, and according to the provisions of clause 8.6. of the Contract, the Claimant argued that the Respondent shall be held liable for the payment of a compensation for the losses and damages supported by the Claimant. Notwithstanding the said provision, the Claimant submits that the Contract fails to stipulate the compensation amount. Due to that, such compensation shall be equal to the residual value of the contract that was prematurely terminated which, in the present case, shall be equal to USD 65,000.
23. The Respondent, for its part, acknowledged that it had executed the Contract, but argued that it should be considered null and void since the Claimant had allegedly breach art. 9 of the FIFA Regulations on the Status and Transfer of Players (RSTP) “by making the entry of information in TMS condition of USD 10,000 in two stages by Padieh” (sic).
24. The Respondent further argued that upon insistence from the Claimant, it paid USD 5,000 for issuing the ITC, and immediately inserted the relevant information in TMS but it could not be completed “because it was out of the time”.
25. In continuation, the Respondent argued that the Claimant filed an “early claim” since the deadline of 10 days given in the notice of 17 July 2020 had not expired yet.
26. The Respondent further argued that the “frustration” of the contract took place also because of the “Claimant’s fault” in light of the “illegal request” for payment for the issuance of the ITC. Accordingly, the Respondent claimed that “condemnation of Padideh to pay this amount is against justice and legal principles”.
27. The Respondent then turned to the matter of the penalty and interest sought by the Claimant, and argued that both “are examples of double recovery for a single compensation ad (sic) is unjust enrichment”.
28. Lastly, the Respondent argued that the Claimant did not file any evidence with regards to the labour lawsuit filed by the Player against the Claimant.
29. For all the above, the Respondent requested that the claim be dismissed.
II. Considerations of the Single Judge of the PSC
30. First of all, the Single Judge of the Players’ Status Committee (hereinafter referred to as Singe Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA on 17 July 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.
31. Subsequently, the Single Judge 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. f) of the Regulations on the Status and Transfer of Players (edition October 2020), he is competent to deal with matters which disputes between clubs belonging to different associations, such as in the case at hand pertaining to a Brazilian club and an Iranian club.
32. In continuation, the Single Judge analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present 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 Players, and considering that the claim was lodged on 17 July 2020, the June 2020 edition of the aforementioned regulations (hereinafter: “the Regulations”) is applicable to the matter at hand.
33. With the above having been established, the Single Judge entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, he emphasized that in the following considerations he will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.
34. Within this context, the Single Judge noted that it is uncontested that the Parties signed the Contract on 19 July 2018.
35. After analysing the parties’ submissions, the Single Judge determined that the underlying issue in this dispute, considering the diverging position of the parties, is the assessment as to whether is the contract was correctly executed or not, and whether a breach had taken place.
36. After analysing the evidence on file, it became clear to the Single Judge that the wording of the Contract is contradictory and dubious.
37. In this regard, the Single Judge noted that while clause 1.3 of the Contract states that the Parties would input the relevant data in TMS in order to allow the issuance of the ITC “immediately after” the execution of the agreement, clause 3, in particular Clause 3.5 of the Contract, seems to indicate that the issuance of the ITC was to be performed after the Respondent had paid USD 5,000. The Single Judge in any event noted that such clause 3.5 equally is poorly drafted.
38. Given the uncertainty of the contractual clauses at stake, it was therefore necessary for the Single Judge to interpret the true intention of the parties.
39. In this regard, he turned to the longstanding jurisprudence of the Players’ Status Committee and highlighted that such interpretation shall be assessed on the basis of the behaviour of the parties, their respective interest in the contract and its goal, as well as the principle In dubio contra stipulatorem. Having the above in mind, the Single Judge proceeded then to examine the file.
40. Firstly, the Single Judge noted that the objective of the Contract was, without question, to temporarily transfer the Player from the Claimant to the Respondent between 18 July 2018 until 30 May 2019.
41. Secondly, the Single Judge observed that there is no disposition in the Contract that granted the Respondent a deadline to pay the USD 5,000. Conversely, he observed that clause 1.3 clearly states that the Parties would “immediately” upload the relevant data on TMS in order for the ITC to be issued.
42. Thirdly, the Single Judge noted that it cannot be said that payment of amounts, or issuance of the ITC, impacted the validity of the Contract, since clauses 18.1 and 18.6 clearly stipulate that the Contract was in force following its signature by the Parties, and that the only condition precedent was the passing by the Player of his medical examination.
43. Fourthly, the Single Judge turned to the contents of art. 2 par. 4 of annexe 3 of the Regulations, according to which “In case of an international transfer where a transfer agreement exists, both clubs involved must, independently of each other, submit information and, where applicable, upload certain documents relating to the transfer into TMS as soon as the agreement has been formed”.
44. As a final note, the Single Judge scrutinised the Contract and concluded that the Claimant shall be considered to be the contract draftsman, in light of the fact that:
a. it was drafted in the Claimant’s letterhead; and,
b. it indicates “Colorado, July 19th, 2018” as its place and date of execution.
45. Hence, the Single Judge concluded that the Contract shall be interpreted to the Claimant’s disadvantage in direct application of the principle of in dubio contra stipulatorem.
46. In light of the above, the Single Judge considered that the true intention of the Parties was not to make the ITC instruction conditional upon payment of USD 5,000 by the Respondent, but rather agreed that the relevant insertion of data in TMS was to be made subsequently after the conclusion of the agreement.
47. Consequently, it became clear to the Single Judge that neither of the parties timely and independently inserted the relevant data in TMS in accordance with the contractual and regulatory stipulations applicable, in particular the cited art. 2 par. 4 of annexe 3 of the Regulations, and thus the transfer window in the Respondent’s country closed, leading to the failed transfer of the Player.
48. Furthermore, the Single Judge observed that the Parties’ belatedness in moving forward with the Player’s registration via TMS, while the registration deadline was running against them, shows that both Parties concurrently did not seem genuinely interested in the Contract’s performance and the conclusion of the transfer thereof.
49. In conclusion, having in mind the principles of in pari causa turpitudinis cessat repetitio and exceptio non adimpleti contractus, since both Parties concomitantly breached the contract and therefore contributed to the failure of the transfer, making it impossible for the Contract to be performed.
50. All of the above led the Single Judge to the conclusion that the claim cannot be upheld and thus that the claim shall be rejected.
51. Lastly, the Single Judge referred to the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which no procedural costs shall be levied for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), and determined given that the claim at hand was lodged on 17 July 2020, the decision shall be rendered free of costs.
52. For the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and confirmed that no procedural compensation shall be awarded in these proceedings.
III. Decision of the Single Judge of the PSC
1. The claim of the Claimant, Colorado AC, is rejected.
2. This decision is rendered 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).
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