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

• Data decisione: 3 novembre 2020 • 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 3 November 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 3 November 2020,

regarding a dispute concerning the transfer of the player Modou Barrow

BY:

Johan van Gaalen (South Africa), Single Judge of the PSC

CLAIMANT:

READING FC, England

represented by Mr Penry Jones

RESPONDENT:

DENIZLISPOR KULUBU, Turkey

I. FACTS

1. On 13 August 2019, the parties concluded an agreement regarding the temporary transfer (hereinafter: loan agreement) of the player Modou Barrow (hereinafter: the player) from the Claimant to the Respondent between 13 August 2019 until 30 June 2020.

2. According to art. 1.2 of the agreement the Respondent undertook to pay the Claimant as compensation for the temporary transfer of the player a total amount of EUR 125,000 in two equal instalments as follows:

a) EUR 62,500 on 31 December 2019; and

b) EUR 62,500 on 30 April 2020.

3. Furthermore, art. 1.2.3. of the loan agreement reads as follows:

“If Denizlispor does not pay any sums due to Reading FC under the terms of this Agreement within 7 (seven) calendar days of the due date for payment then interest shall accrue on all sums due and payable to Reading FC at the rate of 20% (twenty per cent) per annum pro rata for each payment delayed from the date of such default until the actual date of payment. Agreement on the interest rate does not preclude Reading FC to seek payment of damages that might arise as a consequence of such delayed payments”.

4. The Claimant held that the Respondent failed to remit any payment resulting from the loan agreement.

5. Hence, on 14 April 2020, the Claimant put the Respondent in default and requested payment of the first instalment of EUR 62,500, as well as 20% interest p.a.

6. On 9 June 2020, the Claimant sent a second default notice to the Respondent, requesting payment of the second instalment of EUR 62,500, as well as 20% interest p.a., setting a 10-day deadline in order to remedy the default.

7. On 6 August 2020, the Claimant lodged a claim against the Respondent at FIFA and requested the following relief:

(a) payment of the total amount of EUR 125,000 as loan fee plus interest on this debt up to the date of this claim in the sum of EUR 10,445, and the sum of EUR 68,49 for each day thereafter that the debt remains outstanding;

(b) that its claim is admissible; and

8. In its claim, the Claimant further specifies that the amount of interest of EUR 10,445 consists of:

- the amount of EUR 4,144 related to the first instalment, for the period between 6 January 2020 and 6 May 2020, i.e. a period of 121 days at a rate of 20% interest p.a. as well as

- the amount of EUR 6,301 related to the first and second instalment, for the period between 6 May 2020 and 6 August 2020, i.e. a period of 92 days at a rate of 20% interest p.a.

9. In its reply to the claim, the Respondent requested that the Claimant’s claim is rejected.

10. In this regard, the Respondent alleged having remitted the amount of EUR 62,500 on 3 September 2020, corresponding to the first instalment, without any further specification.

11. Moreover, the Respondent argued that the second instalment should not be payable since it “could not use the player for a very long period” due to his disciplinary actions and indicated that it lodged a separate claim against the player before FIFA.

12. In addition, the Respondent alleges that the COVID-19 pandemic caused a huge loss of income for the club. In this context, the Respondent pointed out that “the members of the football family should shoulder together the damages of the COVID-19 pandemic” and therefore it requested to receive a “10% discount”.

13. In conclusion the Respondent requested the following relief:

a) that the Claimant’s claim is rejected;

b) that sporting sanctions are not imposed on the Respondent; and

c) that the Claimant bears the cost of the case.

14. Subsequently, the Claimant acknowledged receipt of the payment of the first instalment of EUR 62,500, however it insisted on the payment of the interest of 20% p.a., as it was received more than nine months after its due date.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) first analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 6 August 2020 and decided on 3 November 2020. Consequently, the 2020 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, he shall adjudicate on a contractual dispute between two clubs belonging to different associations.

3. Consequently, the Single Judge is the competent body to decide on the present matter involving an English club and a Turkish club.

4. The Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, it 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 present claim was lodged on 6 August 2020, the June 2020 edition of said regulations is applicable to the matter at hand as to the substance.

5. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. The Single Judge, however, 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.

6. 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.

7. In this respect, the Single Judge noted that it remained undisputed between the Claimant and the Respondent that they concluded a loan agreement on 13 August 2019 for the temporary transfer of the player, Modou Borrow establishing a loan fee pursuant to art 1.2 of EUR 125,000 payable in two instalments as follows:

a) EUR 62,500 on 31 December 2019; and

b) EUR 62,500 on 30 April 2020.

8. The loan agreement also contained the following clause (art. 1.2.3 of the loan agreement), in the event that the Respondent failed to pay any of the agreed amounts in a timely manner. The said clause stipulates the following:

9. Subsequently, the Single Judge took note that the Claimant lodged a claim against the Respondent requesting the payment of the total amount of EUR 125, 000 corresponding to the entire loan fee, as well as relying on art 1.2.3 of the agreement by claiming interest at a rate of 20% for each payment delay.

10. Thereafter, the Single Judge turned his attention to the reply of the Respondent, observing that, according to the latter, the loan fee of EUR 125,000 were no longer due and payable. In this regard the Respondent argued, that the first instalment of EUR 62,500 was already paid to the Claimant on 3 September 2020 and that the second instalment should not be payable, as it could not use the player, due to disciplinary actions taken against the player.

11. Entering into the substance of the matter, the Single Judge went on to examine the Respondent’s argument, according to which the Respondent paid the amount of EUR 62,500 to the Claimant and as well as its statement referencing that it “could not use the player for a very long period” due to his disciplinary actions.

12. In relation to the said payment, the Single Judge observed that, the Claimant, acknowledged receipt of the payment of the first instalment of EUR 62,500, however it insisted on the payment of the interest of 20% p.a., as it was paid more than nine months after its due date. Consequently, the Single Judge established that because of the Claimant’s acknowledgement regarding the payment receipt of EUR 62,500, as well as the contents of the loan agreement, it could only take into account the Claimant’s request for interest.

13. Moreover, the Single Judge turned his attention to the Respondent’s argument that it “could not use the player for a very long period” due to his disciplinary actions. In this regard, the Single Judge noted that the disciplinary behaviour of the player is not a condition to which payment in respect of the loan agreement is subjected to and therefore held that this part of the Respondent’s argument is rejected.

14. In addition, the Single Judge wished to point out that the Respondent’s argumentation related to the outbreak of the COVID-19 pandemic, which apparently was another reason that the Respondent could not fulfil its financial obligations, could not be upheld. In this respect, the Single Judge established that said circumstance, without any further explanation or corroborating documentation, could not exempt the Respondent from fulfilling its financial obligations as per the loan agreement.

15. Hence, considering the content of the loan agreement as well as taking into account the legal principle of pacta sunt servanda, the Single Judge concluded that the outstanding second instalment of the loan fee of EUR 62,500 is due and payable to the Claimant.

16. With regard to the interest claimed, the Single Judge first analysed the wording of art. 1.2.3 of the loan agreement as recalled in par. II.8 above, and emphasised that an amount of 20% interest p.a. as contractually agreed between the parties, exceeds the maximum interest rate allowable in accordance with Swiss law and should be reduced to an 18% interest p.a, which corresponds to the said maximum interest rate.

17. In conclusion, the Single Judge decided to partially accept the claim of the Claimant and concluded that the Claimant is entitled to the following amounts:

a) the amount of EUR 62,500 (i.e. the second instalment), plus 18% interest p.a. as from 8 May 2020 until the date of effective payment; and

b) to award interest of 18% p.a. on the amount of EUR 62,500 (i.e. the first instalment) as from 8 January 2020 until 3 September 2020.

18. Furthermore, the Single Judge decided to reject any further claim lodged by the Claimant.

19. Subsequently, taking into account the previous considerations, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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.

20. 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.

21. 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.

22. The Single Judge recalled that the above-mentioned sanction 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.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

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

2. The Respondent, Denizlispor Kulubu, has to pay to the Claimant the amount of EUR 62,500 plus 18% interest p.a. as follows:

- on the amount of EUR 62,500 as from 8 January 2020 until 3 September 2020.

- on the amount of EUR 62,500 as from 8 May 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. 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.

5. 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).

6. 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:

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.

7. The 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:

Fédération Internationale de Football Association

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

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