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

• Data decisione: 22 settembre 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 22 September 2020

Decision of the

Single Judge of the PSC

passed on 22 September 2020

regarding a dispute concerning the transfer of the player Lucas Martin Villafanez

COMPOSITION:

Castellar Guimarães Neto (Brazil), Single Judge of the PSC

CLAIMANT:

Alanyaspor, Turkey

Represented by Mr Sami Dinc

RESPONDENT:

Mazatlán FC, Mexico

Represented by Senn, Ferrero & Asociados

I. Facts

1. On 11 July 2019, the Claimant and the Respondent concluded a transfer agreement for the transfer of the player Mr. Lucas Martin VILLAFANEZ to the latter, for the amount of USD 1,800,000, as follows:

• USD 600,000 until 16 July 2019;

• USD 600,000 until 30 June 2020;

• USD 600,000 until 30 December 2020.

2. In addition, the transfer agreement stipulated the following:

“Upon late payment in part and/or in full of any amounts in this Contract by MONARCAS, MONARCAS shall pay to ALANYASPOR in the amount of 2.500 USD (…). For every day separately until the date of the payment of unpaid amounts as the “penalty” in addition to the unpaid amounts and its interests”

3. On 3 July 2020, the Claimant sent a default notice to the Respondent, requesting the payment of USD 600,000, corresponding to the amount due on 30 June 2020.

4. On 9 July 2020, the Respondent replied to the default notice and acknowledged its debt of EUR 600,000, while noting its financial difficulties in view of the COVID-19 pandemic. In this respect, the Respondent offered to pay the aforementioned amount as follows:

• USD 300,000 on 15 September 2020;

• USD 300,000 on 15 November 2020.

5. On 22 July 2020, the Claimant lodged a claim before FIFA against the Respondent, and requested the payment of the overdue amount of USD 600.000, as well as interest at the rate of 5% per annum as of 30 June 2020 until the date of effective payment

6. Furthermore, the Claimant requested the payment of the stipulated penalty in the amount of USD 2,500 per day for the period between 30 June 2020 and the date of effective payment.

7. In its reply to the claim, the Respondent explained that, due to the effects of the COVID-19 pandemic and the suspension of the competition in Mexico, it faced economic problems.

8. In this respect, the Respondent underlined that it offered a payment plan to the Claimant.

9. However, the Respondent complained that, by lodging a claim before FIFA, the Claimant is acting “narrow-mindedly and in bad faith”, and wished to draw the attention to the Claimant’s “lack of sensitivity and empathy with respect to the worldwide health and economic situation, since far from seeking to aid and/or otherwise benefit the football family, it damages it with actions such as the one currently concerning the parties hereof.”

10. In addition, the Respondent considered that the penalty as stated in the transfer agreement is excessive, and requested its reduction.

11. The Respondent attached a receipt of payment for the amount of USD 600,000 and dated 25 August 2020.

II. Considerations of the Single Judge of the PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Chamber or DRC) analysed whether it 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 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, 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 analyzed 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 the date of the claim, the June 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 11 July 2019, the Claimant and the Respondent concluded a transfer agreement for the transfer of the player Mr. Lucas Martin VILLAFANEZ to the latter, for the amount of USD 1,800,000, as follows:

• USD 600,000 until 16 July 2019;

• USD 600,000 until 30 June 2020;

• USD 600,000 until 30 December 2020.

6. Subsequently, the Single Judge observed that, the Claimant lodged a claim before FIFA and requested the payment of the outstanding amount of USD 600,000, corresponding to the amount due on 30 June 2020.

7. In relation to said claim, the Single Judge noted that, in its reply to the claim, the Respondent provided evidence of having paid the amount of USD 600,000 on 25 August 2020 and allegedly corresponding to the amount due on 30 June 2020.

8. In this respect, and after duly observing the provided evidence and, in particular, the Single Judge considered that the Respondent sufficiently justified said payment. As a result, the Single Judge understood that the claimed principal amount, which was due on 30 June 2020 was paid on 25 August 2020.

9. However, the Single Judge noted that, nevertheless, the Claimant requested the payment of a penalty in the amount of USD 2,500 per day for the period between 30 June 2020 and the date of effective payment. In this respect, the Single Judge noted that, although the Respondent appears to have paid the principal amount, it did so with a delay of almost two months.

10. In view of the above, the Single Judge understood that the legal matter at stake fundamentally concerns the payment of interest over the principal amount, insofar this part of the claim was appears to have been settled. In this regard, the Single Judge understood that the principal amount, which the Claimant acknowledged in the sum of USD 600,000, was due on 30 June 2020 and was effectively paid on 25 August 2020. Thus, any payment of interest would arise as from 1 July 2020 (i.e. the day following the due date) until 25 August 2020.

11. In relation to the payment of interest, the Single Judge noted that the contract stipulated the following:

12. Concerning said clause, the Single Judge noted that, in practical terms, if extended to a year, i.e. 2,500*365, the penalty included in said clause would de facto correspond to USD 912,500. This amount corresponds to approx. 152% of the principal amount of USD 600,000. Thus, if compared to a yearly interest rate, this would correspond to approx. 152% p.a.

13. As a result, the Single Judge understood that the aforementioned clause contains a hidden interest rate of 152% p.a., which is clearly excessive and disproportionate as per Swiss law.

14. Taking into account the foregoing circumstances, as well as FIFA’s longstanding jurisprudence in this respect, the Single Judge established that said interest rate shall be reduced to 18% p.a. in accordance with Swiss law.

15. Consequently and based on the all the above mentioned circumstances, the Chamber decided that the Respondent is liable to pay to the Claimant, 18% interest p.a. over the amount of USD 600,000 for the period comprised between 1 July 2020 until 25 August 2020.

16. 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.

17. 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, 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.

18. Furthermore, taking into account the previous considerations, the Single Judge of the PSC 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.

19. In this regard, the Single Judge of the PSC 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.

20. Therefore, bearing in mind the above, the Single Judge of the PSC decided that, in the event that the Respondent does not pay the interest 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.

21. Finally, the Single Judge of the PSC recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amount, in accordance with art. 24bis par. 3 of the Regulations.

III. Decision of the Single Judge of the PSC

1. The claim of the Claimant, Alanyaspor, is partially accepted.

2. The Respondent, Mazatlán FC, has to pay to the Claimant, 18% interest p.a. over the amount of USD 600,000 for the period comprised between 1 July 2020 until 25 August 2020.

3. Any further claims of Alanyaspor 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. This decision is pronounced 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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

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

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