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 8 December 2020
Decision of the
Single Judge of the Players' Status Committee
passed in Zurich, Switzerland, on 8 December 2020,
regarding an employment-related dispute concerning the player Cristian Gabriel Romero
BY:
José Luis Andrade (Portugal), Single Judge of the PSC
CLAIMANT:
CA BELGRANO, Argentina
RESPONDENT:
GENOA CFC, Italy
I. FACTS
1. On 3 March 2018, the parties concluded a contract for the transfer of the player Cristian Gabriel Romero from Belgrano to Genoa for the amount of EUR 1,300,000.
2. In addition, the parties agreed upon the following:
“(i) In the event that GENOA transfers THE PLAYER, either temporarily or permanently, to a third club during THE PLAYER's engagement with GENOA for an amount in excess of EURO ONE MILLION SIX HUNDRED TWENTY-FOUR THOUSAND NINE HUNDRED AND NINETY-SIX (€1,624,996}, BELGRANO shall be entitled to receive from GENOA 10% (ten percent) of the fixed and variable amount over and above EURO ONE MILLION SIX HUNDRED TWENTY-FOUR THOUSAND NINE HUNDRED AND NINETY-SIX (€1,624,996), received by GENOA from said third club for such transfer (hereinafter, the "Sell-on Fee"), after deduction of any possible amount due as solidarity contribution and
(i) training compensation to any third club.
(ii) The payment to be made according to this section to BELGRANO shall not be subject to any deduction for ''Italian Expenses". The amounts due for Solidarity Mechanism shall be deducted from the Sell-On Fee, in compliance with the FIFA Regulations on the Status and Transfer of Players. It is understood that the payment to be made according to this section includes any training compensation and solidarity contribution, which could be due lo BELGRANO according to the FIFA Regulations on the Status and Transfer of Players.
(iii) Such Sell-On Fee shall be payable to BELGRANO by GENOA within ten (10) days of GENOA receiving the relevant payment from the third club.”
3. Art. 14 of the transfer agreement further provided that: “in the event Genoa fails to comply with the payment of any sum within the agreed deadline, Belgrano will send a 10-days default notice to Genoa. In the event Genoa does not comply with said payment within the 10-days deadline granted, it shall be deemed as delay, and Belgrano will be entitled to claim the payment of all the installments”.
4. On 12 July 2019, the player was transferred to the Italian club, Juventus FC, for the amount of EUR 26,000,0000 payable as follows:
EUR 8,700,000 “season 2019/2020”.
EUR 8,600,000 “season 2020/2021”.
EUR 8,700,000 “season 2021/2022”.
5. On 20 February 2020, the Claimant sent a default notice to the Respondent, indicating the following:
“As per Article 11 of said Agreement, GENOA should have paid to BELGRANO a ten percent (10%) of the fixed and variable amount over and above EUROS ONE MILLION SIX HUNDRED TWENTY-FOUR THOUSAND NINE HUNDRED AND NINETY-SIX (E 1.624.996) that GENOA received from a third club for the transfer of The Player.
On 12 July 2019 The Player was transferred from GENOA to JUVENTUS for the sum of EUROS TWENTY SIX MILLIONS (E26.000.000) according to the press release issued by JUVENTUS (https://www.juventus.com/en/news/news/2019/agreement-with-genoa-for-cristian-romero.php).
As per Clause 11 point 3 of the Transfer Agreement, the Sell On fee must be paid by GENOA to BELGRANO within ten (10) days of GENOA receiving the relevant payment from JUVENTUS.
As of today BELGRANO has not received any payment from GENOA regarding the sell on fee clause of the transfer agreement as consequence of the transfer of the player, to JUVENTUS.
We also ask you to send us a copy of the transfer agreement signed with JUVENTUS for the purpose to being able to check the transfer amount and the payments dates that you agreed.
Consequently, BELGRANO hereby requires the payment of the net amount of Euros 2.437.500 corresponding to the Sell on Fee (Clause Eleventh of the Transfer Agreement)”.
6. The Claimant lodged a claim before FIFA against the Respondent, and requested the payment of the amount of EUR 2,437,500.40, in application of the sell-on fee concluded with the latter, which it calculated as follows:
Amount paid by Juventus: Euros 26,000,000.
Amount paid above Euros 1,624,996: Euros 24,375,004
Ten Percent on said "excess": Euros 2,437,500.00
7. The Claimant also claims interest as from the due dates and procedural costs.
8. In its reply, Genoa acknowledged that it owed to Belgrano the amount of EUR 2,437,500 (i.e. 10% of the amount in excess to 1,624,966 on EUR 26,000,000).
9. However, Genoa explained that said amount shall not be paid as a lump sum, since in its agreement with Juventus, it agreed to pay the amount of EUR 26,000,000 as follows:
• EUR 8,700,000 during the 2019/2020 football season;
• EUR 8,600,000 during the 2020/2021 football season;
• EUR 8,700,000 during the 2021/2022 football season.
10. Moreover, Genoa specified that, following the FIGC Circular Letter no. 117/A, payments shall be done as follows:
‘- one instalment of 20% of the amount due within the 2019/2020 football season;
- eight instalments of 10% each of the amount due within the 2019/2020 football season, within the end of each month from 30th September 2019 until 30th April 2020;
- the eight instalments above and the payments provided for the years after the 2019/2020 shall be guaranteed in compliance with paragraph 17 below, if necessary in combination among them’.
11. In sum, Genoa argued that “by applying clause eleventh of the Transfer Agreement and the FIGC Rules”, the payment schedule shall be as follows:
2019/2020
Amount due
20202021*
Amount due
2021/2022
Amount due
31/08/2019
€141,500
31/08/2020
€172,000
31/08/2021
€174,000
30/09/2019
€ 70,750
30/09/2020
€ 86,000
30/09/2021
€ 87,000
31/10/2019
€ 70,750
31/10/2020
€ 86,000
31/10/2021
€ 87,000
30/11/2019
€ 70,750
30/11/2020
€ 86,000
30/11/2021
€ 87,000
30/12/2019
€ 70,750
31/12/2020
€ 86,000
31/1 2/ 2021
€ 87,000
30/01/2020
€ 70,750
31/01/2021
€ 86,000
31/01/2022
€ 87,000
29/02/2020
€ 70,750
28/02/2021
€ 86,000
28/02/2022
€ 87,000
30/03/2020
€ 70,750
31/03/2021
€ 86,000
31/03/2022
€ 87,000
30/04/2020
€ 70,750
30/04/2021
€ 86,000
30/04/2022
€ 87,000
€707,500
€860,000
€870,000
* NB the payment schedule for the 2020/2021 football season will be affected by the consequences of the COVID19 pandemic. To this end, the FIGC will shortly issue a Circular letter, which we will provide to FIFA in due course.
12. As such, Genoa considered that EUR 707,500 is due at present date.
13. According to Genoa, no acceleration clause is applicable in relation to said payments.
II. CONSIDARATIONS OF THE SINGLE JUDGE OF THE PSC
1. First of all, the Single Judge of the PSC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 5 May 2020. Taking into account the wording of art. 21 of the 2019 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 members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed 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 (edition August 2020), 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 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 5 May 2020, the March 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 3 March 2018, the parties concluded an agreement for the permanent transfer of the player, Cristian Gabriel Romero, from the Claimant to the Respondent, for the amount of EUR 1,300,000. What is more, according to the transfer agreement, the parties also agreed that in case the player would be transferred from the Respondent to a third club, for an amount higher than EUR 1,624,996, the Claimant would – within 10 days of the Respondent receiving the transfer amount - be entitled to a 10% sell-on fee on the amount exceeding EUR 1,624,996. Finally, the parties agreed that solidarity contribution and training compensation would be deducted from the transfer fee received by the Respondent from the third club.
6. Also, based on the transfer agreement, in case the Respondent would not comply with its (general) financial obligations, after it was provided with a 10 days’ deadline, the Claimant would be entitled to the payment of all instalments.
7. In addition, the Single Judge noted that on 12 July 2010, the player was transferred to the Italian club Juventus FC for an amount of EUR 26,000,000, payable as follows:
EUR 8,700,000 “season 2019/2020”;
EUR 8,600,000 “season 2020/2021”;
EUR 8,700,000 “season 2021/2022”.
8. Subsequently, the Single Judge observed that, on 6 May 2020, the Claimant lodged a claim before FIFA against the Respondent and requested the payment of the outstanding amount of EUR 2,473,500. Said amount corresponds according to the Claimant to 10% of the difference between EUR 26,000,000 (the transfer fee agreed upon between the Respondent and Juventus) and EUR 1,624,996 (the contractually agreed minimum amount), as well as interest and procedural costs.
9. The Respondent, in its reply, confirmed that it owes an amount of EUR 2,437,500, however that due to the instalments agreed upon between its club and Juventus, as well as a circular letter issued by the FIGC, the amount did not fall due yet in total. The Respondent points out that at the moment, only an amount of EUR 707,500 had fallen due.
10. Having analysed the positions of both parties, the Single Judge firstly stressed that, since it remained uncontested that the Respondent transferred the player to Juventus for an amount of EUR 26,000,000, as well as that the Respondent owes a specific amount of sell-on fee to the Claimant. What is more, it remained uncontested that the Respondent failed to make the payment of the sell-on fee for at least the amount of EUR 707,500.
11. Having clarified the above, the Single Judge noted that the conflicting point arising from the present case concerns which amount of the sell-on fee had fallen due as per the date of the decision in the matter at hand. In this respect, the Single Judge noted that the Respondent, amongst others, argued that based on a Circular issued by the Italian FA, the payment schedule is different than the one provided for in the transfer agreement between the Respondent and Juventus.
12. In this respect, the Single Judge noted that in line with art. 9 par. 1, petitions and documentation submitted in the course of proceedings before the deciding bodies of FIFA should be submitted into one of the four official languages. Having reviewed the Circular submitted by the Respondent, the Single Judge noted that said document was only partially translated and decided to only take into account the translated parts of said circular.
13. From the translated parts of the Circular of the FIGC, as well as from the fact that transfer agreement between the Respondent and Juventus did not provide for exact due dates, the Single Judge drew the conclusion that the due dates mentioned in the payment schedule as mentioned by the Respondent in its reply, are the due dates that should be taken into account, while determining on which dates the respective instalments were payable.
14. With respect to the amounts that had fallen due, the Single Judge decided to that the percentages as mentioned in the Circular of the FICG had to be followed, specified as follows:
- 1 instalment of 20% of the amount due;
- 8 equal instalments of 10% each of the amount due ‘within the end of the each month from 30 September 2019 until 30 April 2020’.
15. What is more, the Single Judge further turned its attention to the contents of art. 14 of the transfer agreement between the Claimant and the Respondent, on the basis of which the Claimant deems that all instalments in connection with the sell-on fee have fallen due. Having analysed the content of said article, the Single Judge came to the conclusion that said clause does not appear to apply to the sell on, as it does not specify sell-on. As such, the Single Judge was of the opinion that said article was only applicable to the payment of the amount of EUR 1,300,000 between the Claimant and the Respondent. Moreover, even if that article should apply to the sell-on right of the Claimant, the default notice of the Claimant was sent prematurely as the 2019/2020 season ended on 2 August 2020.
16. Following the above observations, the Single Judge concluded that the full amount of the sell-on fee amounted to (EUR 26,000,000 -/- EUR 1,624,996) * 10% = EUR 2,435,000. Compared to the instalments of EUR 8,700,000, EUR 8,600,000 and EUR 8,700,000 that were paid under the transfer agreement between the Respondent and Juventus, the Single Judge concluded that the respective amounts of sell-on amounted, rounded up, to:
EUR 816,562.50 for the season 2019/2020;
EUR 801,875 for the season 2020/2021;
EUR 816,562.50 for the season 2021/2022.
17. In conclusion, on the date of this decision, 8 December 2020, the sell-on fee connected to the instalments payable in the period between 31 August 2019 and 31 October 2020 was to be paid by the Respondent to the Claimant. According to the Single Judge, these payments could be specified as follows:
an amount of EUR 163,312.50 payable, to be received on 31 August 2019 by the Respondent from Juventus and overdue on 11 September 2019;
an amount of EUR 81,656.25 payable, to be received on 30 September 2019 by the Respondent from Juventus and overdue on 11 October 2019;
an amount of EUR 81,656.25 payable, to be received on 31 October 2019 by the Respondent from Juventus and overdue on 11 November 2019;
an amount of EUR 81,656.25 payable, to be received on 30 November 2019 by the Respondent from Juventus and overdue on 11 December 2019;
an amount of EUR 81,656.25 payable, to be received on 30 December 2019 by the Respondent from Juventus and overdue on 10 January 2020;
an amount of EUR 81,656.25 payable, to be received on 30 January 2020 by the Respondent from Juventus and overdue on 11 February 2020;
an amount of EUR 81,656.25 payable, to be received on 29 February 2020 by the Respondent from Juventus and overdue on 11 March 2020;
an amount of EUR 81,656.25 payable, to be received on 30 March 2020 by the Respondent from Juventus and overdue on 10 April 2020;
an amount of EUR 81,656.25 payable, to be received on 30 April 2020 by the Respondent from Juventus and overdue on 11 May 2020;
an amount of EUR 160,875 payable, to be received on 31 August 2020 by the Respondent from Juventus and overdue on 11 September 2020;
an amount of EUR 80,437.50 payable, to be received on 30 September 2020 by the Respondent from Juventus and overdue on 11 October 2020;
an amount of EUR 80,437.50 payable, to be received on 31 October 2020 by the Respondent from Juventus and overdue on 11 November 2020.
18. Hence – concluded the Single Judge –, in application of the legal principal of law, pacta sunt servanda, the Claimant shall be awarded outstanding remuneration in the amount of EUR 1,138,312.50, plus 5% interest p.a. as from the respective due dates until the date of effective payment.
19. 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.
20. In this respect, the Single Judge reiterated that the claim of the Claimant is only partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Claimant and the Respondent both have to bear the costs of the current proceedings in front of FIFA.
21. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. Consequently and taking into account that the total amount at dispute in the present matter is above CHF 200,001, the Single Judge concluded that in principle the maximum amount of costs of the proceedings corresponds to CHF 25,000. However, 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 prior to 10 June 2020, which has yet to be decided, the maximum amount of the procedural costs shall be equivalent to any advance of costs paid.
22. In conclusion, and considering that the particularity of the case at hand, the Single Judge determined the costs of the current proceedings to the amount of CHF 5,000, i.e. the total of the advance of costs that were paid at the beginning of the procedure.
23. Consequently, the Claimant has to pay the amount of CHF 1,000 and the Respondent the amount of CHF 4,000 in order to cover the costs of the present proceedings.
24. Furthermore, taking into account the consideration under number II./3. above, the Chamber 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 Chamber 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 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 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. Finally, the Chamber 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, CA Belgrano, is partially accepted.
2. The Respondent, Genoa CFC has to pay to the Claimant, the following amount:
- EUR 1,138,312.50, plus 5% interest p.a. until the date of effective payment, as follows:
o on the amount of EUR 163,312.50 as from 11 September 2019;
o on the amount of EUR 81,656.25 as from 11 October 2019;
o on the amount of EUR 81,656.25 as from 11 November 2019;
o on the amount of EUR 81,656.25 as from 11 December 2019;
o on the amount of EUR 81,656.25 as from 10 January 2020;
o on the amount of EUR 81,656.25 as from 11 February 2020;
o on the amount of EUR 81,656.25 as from 11 March 2020;
o on the amount of EUR 81,656.25 as from 10 April 2020;
o on the amount of EUR 81,656.25 as from 11 May 2020;
o on the amount of EUR 160,875 as from 11 September 2020;
o on the amount of EUR 80,437.50 as from 11 October 2020;
o on the amount of EUR 80,437.50 as from 11 November 2020.
3. Any other amounts claimed by the Claimant are considered premature.
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. The final costs of the proceedings in the amount of CHF 5,000 are to be paid as follows (cf. note relating to the payment of the procedural costs below):
- the amount of CHF 1,000 has to be paid by the Claimant to FIFA. Given that the Claimant already paid the amount of CHF 5,000 to as advance of costs to FIFA, no further payment needs to be made.
- the amount of CHF 4,000 has to be paid by the Respondent to FIFA.
For the Dispute Resolution Chamber:
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
www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777