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 February 2021

Decision of the

Single Judge of the Players' Status Committee

passed on 9 February 2021,

regarding a dispute concerning the transfer of the player Dame Diop

BY:

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

CLAIMANT:

FC Banik Ostrava, Czech Republic

Represented by Schweele Law Office

RESPONDENT:

Hatayspor, Turkey

I. FACTS OF THE CASE

1. On 16 January 2020, the Czech club, FC Banik Ostrava (hereinafter: the Claimant) and the Turkish club, Hatayspor (hereinafter: the Respondent) concluded an agreement (hereinafter: transfer agreement) regarding the permanent transfer of the player Dame Diop (hereinafter: player) from the Claimant to the Respondent.

2. According to the transfer agreement, the Respondent undertook to pay the Respondent a transfer fee as well as a conditional payment of EUR 50,000 “in case Hatayspor achieve promotion to Turkish Super League, which is payable under an invoice issued within two months from the date of promotion”.

3. Art. 1.5 of the transfer agreement reads as follows: “In case of delay in payment of the agreed payment, fees and compensations Hatayspor is obliged to pay the FC Banik a contractual fine amounting to 0,5% of the unpaid amount for each day of delay”.

4. On 12 July 2020, the Respondent was promoted to the Turkish Super League.

5. On 12 August 2020, the Claimant sent an invoice to the Respondent, requesting payment of EUR 50,000 in relation the clause in the transfer agreement.

6. On 9 November 2020, the Claimant put the Respondent in default and requested payment of EUR 68,250, corresponding to the conditional payment in connection with the Respondent’s promotion as well as the contractual penalty, within 10 days.

7. On 20 November 2020, the Claimant lodged a claim against the Respondent requesting payment of EUR 68,250 as follows:

- - EUR 50,000 as conditional payment in relation to the Respondent’s promotion;

- - EUR 18,250 as “contractual fine” resulting from art. 1.5 of the contract, corresponding to 0,5% of the unpaid fee per day between 28 August 2020 and 9 November 2020.

Furthermore, the Claimant requested payment of 5% interest p.a. as of the due date.

8. In its claim, the Claimant held that the Respondent was promoted and that the contractually agreed payment was therefore triggered.

9. Furthermore, the Claimant pointed out that it already had to lodge a claim in front of FIFA regarding the payment of the transfer fee, which resulted in a decision by the Single Judge of the PSC (ref. no. 20-00978).

10. Moreover, the Claimant held that the “contractual fine” is not disproportionate and therefore applicable.

11. Despite having been invited to do so, the Respondent did not reply to the claim.

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 20 November 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 J February 2021), and considering that the present claim was lodged on 20 November 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 16 January 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 50,000 “in case Hatayspor achieve promotion to Turkish Super League […]”.

7. The Single Judge further took note of the fact that the parties agreed in clause 1.5 of the transfer agreement that “In case of delay in payment of the agreed payment, fees and compensations Hatayspor is obliged to pay the FC Banik a contractual fine amounting to 0,5% of the unpaid amount for each day of delay”.

8. Moreover, the Single judge took notice of the Claimant’s claim lodged against the Respondent in front of FIFA, requesting payment of EUR 50,000 in connection with the conditional payment due to the promotion of the Respondent and EUR 18,250 as “contractual fine” resulting from clause 1.5 of the transfer agreement.

9. In this context, the Single Judge took particular note of the fact that, on 9 November 2020, the Claimant put the Respondent in default of payment of EUR 68,250, setting a 10 days’ time limit in order to remedy the default.

10. 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 of defence and, thus, accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned consideration, the Single Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.

12. 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 50,000 in case of promotion to the Turkish Super League, which materialised on 12 July 2020. In this regard, the Single Judge took note of the press article submitted in the Claimant’s claim.

13. Taking into account the documentation presented by the Claimant in support of his petition, the Single Judge concluded that the Claimant had substantiated its claim pertaining to the outstanding amount with sufficient documentary evidence.

14. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the amount of EUR 50,000, corresponding to the payment agreed upon in the transfer agreement in case of promotion of the club.

15. In addition, the Single Judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

16. 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 50,000.

17. Subsequently, the Single Judge focussed his attention on the penalty clause contained in art. 1.5 of the transfer agreement, which established that: “In case of delay in payment of the agreed payment, fees and compensations Hatayspor is obliged to pay the FC Banik a contractual fine amounting to 0,5% of the unpaid amount for each day of delay”.

18. The Single Judge pointed out that a daily interest of 0.5% in itself possibly constitutes a penalty since it corresponds to a yearly interest rate of 182.5%. Nevertheless, such interest clause was explicitly and contractually agreed upon between the parties and is therefore not per se inapplicable.

19. 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 the interest of 0.5% per day was disproportionate, and decided to reduce it to a rate of 18% p.a., a rate that shall be applicable as of the day after the invoice was issued by the Claimant.

20. In continuation, taking into account the consideration under number II./15. above, the Single Judge referred to art.12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

21. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the Single Judge highlighted that, within last 2 years, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which warnings had been imposed on the Respondent by the relevant the DRC judge on 17 January 2020 (Ref. no. 19-01838) and the Single Judge of the Players’ Status Committee on 6 October 2020 (20-00978).

22. In this connection, the Single Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

23. Bearing in mind the above, the Single Judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of EUR 50,000 of overdue payables, the deciding body regarded a fine amounting to CHF 7,500 as appropriate and hence decided to impose said fine on the Respondent.

24. 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.

25. 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.

26. 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.

27. 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.

28. Finally, the Single Judge referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, 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.

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

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

2. The Respondent, Hatayspor, has to pay to the Claimant, the following amount:

- EUR 50,000 plus 18% interest p.a. as from 13 August 2020 until the date of effective payment.

3. The Respondent is ordered to pay a fine in the amount of CHF 7,500. The fine is to be paid within 45 days of notification of the present decision to FIFA the bank account indicated below with reference to case 20-01696.

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).

NOTE RELATING TO THE PAYMENT OF THE FINE:

If applicable, payments to FIFA should be made by wire transfer in Swiss francs (CHF) to the following bank account:

366.677.01U (FIFA Players’ Status) UBS Zurich,

SWIFT: UBSWCHZH80A, Clearing number 230, IBAN: CH 27 0023 0230 3666 7701U

Please mention the applicable reference number

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