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

• Data decisione: 20 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 20 November 2020

Decision of the

Single Judge of the PSC

passed on 20 November 2020

regarding a contractual dispute concerning the player Real Sporting de Gijón

COMPOSITION:

Roy Vermeer (Netherlands), Single Judge of the PSC

CLAIMANT:

Real Sporting de Gijón, Spain

Represented by Mr Sergio A. Sánchez

RESPONDENT:

AC Chievo Verona, Italy

Represented by ELSA LEX Avvocati Associati

I. Facts

1. On 12 August 2018, the parties concluded an agreement for the permanent transfer of the player Federico BARBA from the Claimant to the Respondent, for the amount of EUR 2,926,315.80, payable as follows:

-EUR 394.736,84 within 13 August 2018;

-EUR 394.736,84 within 31 August 2018;

-EUR 394.736,84 within 15 February 2019;

-EUR 394.736,84 within 15 June 2019;

-EUR 315.789,47 within 15 September 2019;

-EUR 315.789,47 within 15 February 2020;

-EUR 321.052,66 within 15 June 2020;

-EUR 394.736,84 within 15 September 2020.

Furthermore, the agreement stipulated the following:

1.3 (…)

In the event Chievo does not pay an instalment as indicated above, Gijón shall notify Chievo in writing and grant a 30 day grace period for Chievo to comply with its duty of payment. lf Chievo does not pay the respective instalment due within 30 days as from the notification, Gijón must notify Chievo in writing and thereafter a delay interest at the rate of 3% per month, from the date of default.”

2. On 28 July 2020, the Claimant sent a default notice to the Respondent, for the outstanding amount due on 15 June 2020, indicating the following:

“Following the e-mail sent by my client, Sporting de Gijón, last 25 June 2020 regarding the outstanding payment due on 15 June 2020, 1 am now addressing you to inform that once the 30-day grace period has passed, and in light of the absence of payment or any communication from your side, we are going to undertake legal action befare the corresponding bodies.”

3. On 11 August 2020, the Claimant lodged a claim before FIFA and requested the payment of the outstanding amount of EUR 321,052.66, corresponding to the amount due on 15 June 2020.

4. In addition, the claimant requested the payment of interests in the amount of 18% p.a. as from 15 June 2020.

5. In its reply to the claim, the Respondent provided evidence of having paid the amount of EUR 305,000 and corresponding to the amount due on 15 June 2020.

6. The Respondent further specified the following:

-RS Gijon submitted various factual allegations which are unfounded and not consistent with reality;

-In any event, RS Gijon failed to provide the FIFA PSC with evidence proving its factual allegations and therefore it does not meet the burden of proof;

-RS Gijon did not notify Chievo of any default regarding the 7th Instalment as in accordance with article 1.3 and article 6 of the Transfer Agreement.

Therefore no interest has accrued up until this date and RS Gijòn’s request to this regard should be rejected;

An interest rate of 3% per month is disproportionate and excessive; and

-RS Gijon’s quantification of the 7th Instalment, being Euro 321.052,66,is incorrect.

7. In its replica, the Claimant acknowledged that it received the amount specified in the Respondent’s reply.

8. However, the Claimant argued that the respondent failed to pay the following instalment, although did not formally requested its payment

9. As to the payable interest, the claimant acknowledged that the rate stipulated in the contract is “debatable”, but explained that it requested 18% interest p.a., as it is the limit foreseen by Swiss law.

10. In view of the above, the Claimant requested 18% interest p.a. over the amount of EUR 305,000 as from 16 June 2020 until the date of effective payment, 19 October 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 that the claim was lodged on 11 August 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 12 August 2018, the parties concluded an agreement for the permanent transfer of the player Federico BARBA from the Claimant to the Respondent, for the amount of EUR 2,926,315.80, payable as follows:

-EUR 394.736,84 within 13 August 2018;

-EUR 394.736,84 within 31 August 2018;

-EUR 394.736,84 within 15 February 2019;

-EUR 394.736,84 within 15 June 2019;

-EUR 315.789,47 within 15 September 2019;

-EUR 315.789,47 within 15 February 2020;

-EUR 321.052,66 within 15 June 2020;

-EUR 394.736,84 within 15 September 2020.

6. Subsequently, the Single Judge observed that, on 11 August 2020, the Claimant lodged a claim before FIFA and requested the payment of the outstanding amount of EUR 321,052.66, corresponding to the amount due on 15 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 EUR 305,000 and allegedly corresponding to the amount due on 15 June 2020, after performing certain stipulated deductions.

8. Within this context, the Single Judge observed that, in its replica, the Claimant acknowledged that it received the amount specified in the Respondent’s reply and that, as a result, it modified its request for relief, requesting only 18% interest p.a. over the amount of EUR 305,000 as from 16 June 2020 until the date of effective payment, 19 October 2020.

9. In this respect, the Single Judge took note that, as to the payable interest, the Claimant acknowledged that the rate stipulated in the contract is “debatable”, and that, as a result, it requested 18% interest p.a., as it is the limit foreseen by Swiss law.

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 ultimately settled. In this respect, the Single Judge understood that the principal amount, which the Claimant acknowledged in the sum of EUR 305,000, was due on 15 June 2020 and was effectively paid on 19 October 2020. Thus, any payment of interest would arise as from 16 June 2020 until 19 October 2020.

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

1.3 (…)

12. Concerning said clause, the Single Judge noted that the amount was due on 15 June 2020 and the Claimant sent his default notice on 28 July 2020, whereas he lodged his claim before FIFA on 11 August 2020. Thus, the Single Judge observed that, de facto, the Claimant failed to award a “30 day grace period” to the Respondent.

13. Consequently, the Single Judge observed that the Claimant failed to comply with the terms of art. 1 par. 3 of the contract and, as a result, it is not in a position to invoke said clause.

14. Nevertheless, in line with the longstanding jurisprudence of the Players’ Status Committee in this respect, the Single Judge considered that standard default interest at the rate of 5% p.a can be awarded over the main amount and over the default period, that is, from 16 June 2020 until 19 October 2020.

15. 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.

16. 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.

17. 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.

18. 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.

19. 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.

20. 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, Real Sporting de Gijón, is partially accepted.

2. The Respondent, AC Chievo Verona, has to pay to the Claimant, 5% interest p.a. over the amount of EUR 305,000 calculated as from 16 June 2020 until 19 October 2020.

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 interest due 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 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).

CONTACT INFORMATION:

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