DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - COMMISSIONE PER LO STATUS DEI CALCIATORI - CONTROVERSIE TRA SOCIETA'

• Data decisione: 26 gennaio 2021 • Stagione sportiva: 2020/2021

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 26 January 2021

Decision of the

Single Judge of the PSC

passed on, 26 January 2021

regarding a dispute concerning the transfer of the player Yaw Ackah

BY:

Johan van Gaalen (South Africa)

CLAIMANT:

Bechem United Football Club, Ghana

Represented by Mr. Jan Schweele

RESPONDENT:

Boavista Futebol Clube, Futebol SAD, Portugal

I. FACTS

1. On 28 February 2018, the Ghanaian club, Bechem United Football Club (hereinafter: ‘the Claimant’) and the Portuguese club, Boavista Futebol Clube, Futebol SAD (hereinafter: ‘the Respondent’) entered into a transfer agreement (hereinafter: ‘the agreement’) in respect of the future transfer of the player Yaw Ackah (hereinafter: ‘the player’).

2. The agreement stipulated the following:

“In the event that the Player becomes registered with any other club other (whether on a temporary or permanent basis) during any transfer windows (a 'Subsequent Registration'), as a result of which BOAVISTA is entitled to receive any compensation whatsoever (including any fixed fee, contingent fee or sell on fee, whether in cash or in kind and whether following a mutually agreed permanent or temporary transfer, including any sums payable under FIFA Regulations) in further consideration of the transfer of the Player's registration, BOAVISTA shall pay to BECHEM UNITED FOOTBALL CLUB a percentage of 50% (fifty percent) of the gross compensation contractually stated in the agreement concluded between BOAVISTA and the relevant third club.”

3. In accordance with the terms of the agreement, the parties agreed that the Respondent would be obligated to pay to the Claimant, a percentage of 50% (fifty percent) “of the gross compensation contractually stated in the agreement concluded between the Respondent and the relevant third club” in the event of the future transfer of the player.

4. According to the Claimant in August 2020, the player was allegedly transferred from the Respondent to the new club, Kayserispor Kulübü Dernegi (hereinafter: Kayserispor) for a transfer fee amounting to EUR 600,000, payable in three instalments; therefore, triggering the agreed sell-on fee as stipulated in the agreement.

5. In this regard, the Claimant attempted to reach the Respondent in order to get an amicable disclosure of the transfer conditions; however, despite the efforts of the Claimant, the Respondent never replied or disclosed any information in relation to the said transfer of the player from the Respondent to the new club or any payment regarding the agreed sell-on fee.

6. On 26 August 2020, the Claimant sent a default notice to the Respondent, granting it a 10 days deadline to comply with its financial obligations relating to the agreed sell-on fee, however to no avail.

7. On 23 September 2020, the Claimant lodged a claim with FIFA against the Respondent, requesting the following relief:

a) that the claim is accepted and an award is issued in its favour;

b) that the Respondent disclose the transfer conditions and pay to the Claimant 50% (fifty percent) “of the gross compensation contractually stated in the agreement concluded between BOAVISTA and the relevant third club”, plus interest of 5% p.a. as of the due date(s) until the date of effective payment; and

c) that the FIFA Players’ Status Committee imposes sanctions provided for by art. 12bis of the FIFA Regulations should the Respondent fail to make the payments.

8. On, 9 October 2020, the Respondent in its reply to the claim, did not contest it’s payment obligation in respect of the sell-on fee to the Claimant, but alleged the following:

“The Boavista Futebol Clube, Futebol SAD, has not yet received from the club Kayserispor, the total amount of the transfer relative to the athlete Yaw Ackah, therefore the 30-day period provided for the payment according to the Article 12 bis; par. 2 of the FIFA RSTP has not expired.”

9. On 8 January 2021, the Claimant further indicated that in accordance with the detail shared by FIFA in their letter dated, 22 December 2020 regarding the information available on the Transfer Matching System (‘TMS’), that on 15 September 2020, the player was transferred from the Respondent to Kayserispor for an amount of EUR 600,000, to be paid as follows:

- EUR 300,000 on 18 August 2020;

- EUR 200,000 on 31 July 2021; and

- EUR 100,000 on 30 September 2021.

10. Accordingly, pursuant to the agreed terms between the Respondent and Kayserispor, the Respondent, as of 18 August 2020, should have already received the amount of EUR 300,000. As seen, the player was subsequently transferred to the new club in August 2020 and the first instalment of the agreed terms is due since 18 August 2020, which therefore triggered the sell-on of 50% (fifty percent), over the amount received so far by the Respondent.

11. In conclusion the Claimant indicated that it is therefore clear that, the Respondent should have already transferred to the Claimant its agreed share of 50% of the “gross compensation contractually stated in the agreement”, which, so far, is presumably equivalent to EUR 150,000 plus interest of 5 % p.a. as of the due date(s) until the date of effective payment.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. 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 of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasized 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, the Single Judge of the PSC is competent to deal with disputes between clubs belonging to different associations.

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 23 September 2020, the August 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. In this respect, the Single Judge noted that, on 28 February 2018, the parties concluded an agreement in respect of the future transfer of the player, from the Claimant to the Respondent, and accordingly in terms of the agreement, agreed to the following compensation:

6. Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA against the Respondent, maintaining that the transfer of the player from the Respondent to the new club, Kayserispor triggered the agreed sell-on fee as stipulated in the agreement.

7. Furthermore, the Single Judge noted that the Respondent did not contest the allegations of the Claimant, but indicated that it did not receive the total amount of the transfer of the player from Kayserispor.

8. In addition, the Single Judge observed that, during the course of the proceedings, it was noted on the FIFA Transfer Matching System that payment in the amount of EUR 300,000 was received by the Respondent from Kayserispor. Furthermore, the Single Judge noted that it remained undisputed that the said amount was subsequently transferred to the Respondent.

9. In continuation, the Single Judge took into account that, according to the Claimant, as a consequence of the player’s transfer from the Respondent to Kayserispor, which followed the payment of EUR 300,000 (first instalment) performed by the new club on 18 August 2020, the sell-on clause envisaged in the agreement between the Claimant and the Respondent had been triggered. Consequently, the Claimant deemed that it was entitled to 50% of the gross compensation received by the Respondent, which, thus far, is presumably equivalent to EUR 150,000.

10.The Single Judge concluded that, as the transfer of the player from the Respondent to the new club, Kayserispor had undisputedly occurred and therefore, the Respondent had an obligation to comply with the terms of the settlement agreement, irrespective of whether or not it received payment from specific amounts from a third party. As a result, the Single Judge concluded that the Claimant was entitled to 50% of the gross compensation contractually stated in the agreement concluded between the Respondent and the relevant third club, in this case, Kayserispor.11.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 total amount of EUR 150,000, plus 5% interest p.a. on the said amount as from 19 August 2020 until the date of effective payment.12.Furthermore, 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.13.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.14.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.15.Finally, 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.16.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 3 July 2020, the decision shall be rendered free of costs.

III. DECISION OF THE SINGLE JUDGE OF THE PSC

1. The claim of the Claimant, Bechem United Football Club, is accepted.

2. The Respondent, Boavista Futebol Clube, Futebol SAD, has to pay to the Claimant, the following amount:

- EUR 150,000 plus 5% interest p.a. as from 19 August 2020 until the date of effective payment.

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, 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).

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.

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:

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