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 Players' Status Committee

passed on 26 January 2021,

regarding a dispute concerning the transfer of the player Nicolae Stanciu

COMPOSITION:

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

CLAIMANT:

AC Sparta Praha, Czech Republic

RESPONDENT:

Al Ahli, Saudi Arabia

I. FACTS OF THE CASE

1. On 31 January 2019, the parties concluded an agreement (hereinafter: “the transfer agreement”) regarding the definitive transfer of the player, Nicolae Stanciu (hereinafter: “the player”) from the Claimant to the Respondent.

2. Said transfer agreement, inter alia, read as follows:

1.4 “AC Sparta is entitled to a sell on compensation amounting to 10% of any compensation to which AL Ahli is entitled in regard to any and all loans and or transfer of the Player to a third club (“the sell on compensation”). This sell on compensation is always calculated from any partial compensation of the third club in favour of Al Ahli and is due and payable in 30 days after Al Ahli will receive the respective compensation amount on its bank account (...)”.

Art. 10.2 of the transfer agreement stipulates: “In the event Al-Ahli will not pay any amount due according to this agreement on time, Al-Ahli shall pay to AC Sparta 0,1% of amount due per day as the contractual penalty. Apart from the above-mentioned contractual penalty AC Sparta is entitled to seek also a compensation of the harm that was caused as a result of the delay with the payment, and to its whole extent”.

3. On 2 July 2019, the Respondent and the Czech club, SK Slavia Praha (hereinafter: “the new club”) concluded an agreement regarding the definitive transfer of the player including a transfer fee of USD 4,300,000, payable as follows:

- USD 2,800,000 on 10 July 2019;

-USD 1,500,000 on 20 July 2020.

4. Furthermore, said agreement contained the following clause:

“In case SK Slavia reaches the UEFA Champion’s League group stage in any of the 2019/2020 season, 2020/2021 season or 2021/2022 season, SK SLAVIA shall pay to Al Ahli bonus in the amount of USD 250,000

+ VAT if applicable, due and payable by SK SLAVIA after being invoiced properly within 30 days after SK SLAVIA reaches the UEFA Champion’s League group stage (…)”.

5. On 26 August 2020, the Claimant sent a default notice to the Respondent, requesting payment of USD 142,500, corresponding to its sell-on fee (cf. point 1.4 of the transfer agreement) in relation to the second instalment in connection with the subsequent transfer of the player but to no avail.

6. In the same letter, the Claimant further informed the Respondent that they would require a contractual penalty in the amount of 0.1% per day in accordance with art. 10.2 of the agreement from the due date until the full payment of the second instalment of the sell on fee.

7. On 11 September 2020, the Claimant lodged a claim against the Respondent in front of FIFA requesting payment of USD 142,500 as outstanding sell on fee, as well as a contractual penalty of 18% of the due amount from the due date until the date of effective payment.

8. In support of its claim, the Claimant held that the contractually agreed second instalment of the sell-on fee in the amount of USD 142,500 remained outstanding up to date.

9. Further, the Claimant stated that the transfer agreement foresaw a penalty for late payment in the amount of 0.1% per day and deemed to be entitled to a reduced penalty of 18% interest p.a.

10. In its reply, the Respondent stated that the parties were in a phase to settle this case and requested to be granted more time to comply with its obligations.

11. Additionally, the Respondent stated that the club was affected by the covid-19 pandemic and that as a result, the club lacks financial liquidity due to the absence of financial returns.

12. Finally the Respondent offered to pay the claimant as follows:

-USD 72,500 payable on 15 January 2021

-USD 70,000 payable on 15 March 2021

II. CONSIDERATIONS OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the Players' Status Committee (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was submitted to FIFA by the Claimant on 11 September 2020. Furthermore, the Single Judge noted that the matter was submitted for decision on 26 January 2021. Consequently, the Single Judge concluded that the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: “the Procedural Rules”) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge recalled that in accordance with art. 3 par. 1 of the Procedural Rules in combination with art. 23 par. 1 and art. 22 lit. c) of the 2020 edition Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) he is, in principle, competent to deal with employment-related disputes between two clubs of an international dimension.

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 11 September 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. The competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter. Subsequently, the Single Judge continued by acknowledging the above-mentioned facts as well as the documentation contained in the file in relation to the substance of the matter. However, the Single Judge emphasized that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. To start with the Single Judge noted that on 31 January 2019, the parties concluded a transfer agreement pursuant to which the Respondent agreed to pay the Claimant “a sell on compensation amounting to 10% of any compensation to which AL Ahli is entitled in regard to any and all loans and or transfer of the Player to a third club (“the sell on compensation”). This sell on compensation is always calculated from any partial compensation of the third club in favour of Al Ahli and is due and payable in 30 days after Al Ahli will receive the respective compensation amount on its bank account (...)”.

6. Furthermore the Single Judge noted that on 2 July 2019, the Respondent transferred the player to a new club (SK Slavia Praha) for a transfer fee of USD 4,300,000.

7. In continuation the Single Judge took note of the Claimant’s request for payment of EUR 142,500, in relation to the second instalment of the contractually agreed sell on fee and a late payment penalty of 0.1% per day.

8. The Single Judge also noted that the outstanding amounts claimed by the Claimant were not contested by the Respondent and that the requested amount of USD 142,500 by the Claimant appeared to have been calculated taking into account the 5% deduction as solidarity payments, since 10% of USD 1,500,000 would amount to USD150,000.Therefore, the Single Judge concluded that the amount of USD 142,500 would be granted on the basis of the principle of non-ultra petita.

9. Furthermore, the Single Judge turned his attention to the Respondent’s submission that it had not been able to meet its contractual obligations as a result of the effects of the COVID-19 pandemic on its financial situation.

10. The Single Judge recalled that the FIFA COVID FAQ did not determine that the COVID-19 outbreak was a force majeure in any specific country or territory or that any specific employment or transfer agreement was impacted by the concept of force majeure. In this sense, the DRC noted that the argumentation brought forward by the Respondent cannot be upheld, given the fact that the club has not substantiated its position and/or brought forward any evidence in respect to the alleged existence of a force majeure.

11. Moreover, with regard to the interest requested, the Single Judge approved the Claimant’s request for the a reduced amount of 18% p.a., since the contractually agreed daily interest rate of 0.1% would correspond to 36.5% p.a., a percentage which appears excessive and exceeds the maximum percentage allowed under Swiss Law.

12. In conclusion, the Single Judge decided that the interest rate of 18% would accrue from 19 August 2020, i.e. the day after the amount fell due, which is 30 days from payment as per the transfer agreement.

13. The Single Judge concluded his deliberations in the present matter by establishing that the claim of the Claimant is accepted.

14. Furthermore, 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.

15. 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.

16. Therefore, bearing in mind the above, the DRC 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 club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

17. Finally, the DRC 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.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, AC Sparta Praha, is accepted.

2. The Respondent, Al Ahli, has to pay the Claimant the total amount of USD 142,500 as outstanding sell on fee plus 18% annual interest as from the due date of 19 August 2020 until the date of effective payment.

3. The present claim is rendered without costs.

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:

 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.

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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