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 14 July 2020

Decision of the

Single Judge of the Players’ Status Committee

passed via videoconference, on 14 July 2020,

regarding a contractual dispute concerning the player Gerson Leal Rodrigues Gouveia

BY:

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

CLAIMANT:

FC Dynamo Kyiv, Ukraine

RESPONDENT:

MKE Ankaragucu SK, Turkey Represented by Mr Yasar Tolga Bozkurt

I. FACTS OF THE CASE

1. On 29 January 2020, the parties signed an agreement (hereinafter: the transfer agreement) over the loan transfer of the player, Mr Gerson Leal Rodrigues Gouveia, from FC Dynamo Kyiv (hereinafter: Dynamo or the Claimant) to MKE Ankaragucu SK (hereinafter: Ankaragucu or the Respondent) for a period between 29 January until 30 June 2020.

2. According to clause 2.3.2 of the transfer agreement, the parties agreed on a transfer fee amounting to EUR 450,000 which was payable in two instalments, as follows:

 EUR 250,000 by 5 February 2020;

 EUR 200,000 by 5 April 2020.

3. In accordance with clause 3.2 of the transfer agreement, the parties agreed on the following penalty (clause here below displayed for your perusal): “In case of untimely or incomplete execution by the Club of any of the payments under the present Contract (with a delay of more than 5 days), the Club shall be obliged to additionally pay to Dynamo a fine of 10% of the outstanding amount due plus 15% p.a. interest on the outstanding amount. The Club confirms that such penalty sanction is fair and proportionate and waives any right to challenge it”.

4. On 5 May 2020, Dynamo lodged a claim against Ankaragucu before FIFA, requesting outstanding remuneration in the amount of EUR 200,000, corresponding to the second instalment of the transfer fee, plus 15% interest p.a. as from 6 April 2020 until the date of effective payment. In addition, the Claimant requested to be awarded the amount of EUR 20,000 as penalty, in accordance with clause 3.2 of the transfer agreement.

5. In its claim, the Claimant explained that the Respondent failed to pay the second instalment of the transfer fee in the amount of EUR 200,000 and that, on 7 April 2020, the Respondent sent an email to the Claimant, where the former explained that the lack of payment occurred due to financial difficulties caused by the covid19 outbreak and that it would make the payment as soon as possible (note: document on file).

6. Subsequently, on 10 April 2020, the Claimant replied to the correspondence of the Respondent, putting the latter in default of payment and granting the Respondent a 10 days’ deadline to comply with its financial obligations. Nevertheless, according to the Claimant, on 22 April 2020, the Respondent replied thereto, arguing –once again– that it could not execute the relevant payment due to its financial difficulties.

7. In this context, the Claimant held that the arguments raised by the Respondent cannot be upheld, since the financial difficulties of a club cannot be invoked as a justification for the non-compliance of its obligations. In this respect, the Claimant argued that the arguments of the Respondent cannot be understood as a situation of force majeure, insofar the essential element of force majeure is the impossibility of a person to execute its obligations, and, as per the Respondent’s letter, the non-payment of the second instalment occurred due to the “suspension of the competitions, lack of competition revenues and broadcaster payments”.

8. In its request for relief, the Claimant requested the following:

9. Despite having been invited to do so, the Respondent failed to reply to the claim.

II. CONSIDERATIONS OF THE PLAYERS’ STATUS COMMITTEE

A. Competence

10. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the 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 5 May 2020. Taking into account the wording of art. 21 of the November 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.

11. Subsequently, the Single Judge referred to art. 3 of the Procedural Rules and noted that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. f) of the June 2020 edition of the Regulations on the Status and Transfer of Players, he is in principle competent to deal with the matter at sake which concerns contractual dispute of an international dimension between a Ukrainian club and a Turkish club.

B. Applicable legal framework

12. Having established his competence, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance to art. 26 par. 1 and 2 of the June 2020 edition of the Regulations on the Status and Transfer of Players and considering that the present claim was lodged with FIFA on 5 May 2020, the January 2020 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the present matter as to the substance.

C. Burden of proof

13. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

14. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

D. Merits of the dispute

I. Main legal discussion and considerations

15. His competence and the applicable regulations having been established, and entering into the merits of the case, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, he emphasised that, in the following considerations, he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

16. In the first place, the Single Judge observed that, despite having been invited to do so, the Respondent failed to timely reply to the claim and, recalling the content of art. 9.3 of the Procedural Rules, the Single Judge determined that submissions received outside the time limit shall not be taken into account and, as a consequence thereof, the arguments and proven facts raised by the Claimant would be held as uncontested by the present deciding body.

17. In this context, the Single Judge firstly recalled the content of clause 2.3.2 the transfer agreement, according to which the Respondent undertook to pay to the Claimant a transfer compensation, which amounts to EUR 450,000 and was payable in two instalments of EUR 250,000 and 200,000 by 5 February and 5 April 2020, respectively.

18. In addition, the Single Judge referred to the content of clause 3.2 of the transfer agreement, which provides that, in case of delay of more than 5 days in the payment of any of the amounts due thereunder, the Respondent would have to pay a penalty, which would equal to 10% of the outstanding amounts; as well as interest of 15% p.a. on said outstanding amounts.

19. In continuation, the Single Judge acknowledged that, by means of its letter dated 10 April 2020, the Claimant put the Respondent in default of payment of the second instalment of the transfer compensation in the amount of EUR 200,000 and granted the Respondent a 10 days’ deadline to remedy the default.

20. In this context, the Single Judge duly noted that, although the second instalment of the transfer compensation was payable by 5 April 2020, the Respondent failed to make such payment within the agreed payment schedule and, consequently, the Claimant put the Respondent in default of payment 5 days thereafter i.e. on 10 April 2020, requesting the Respondent to comply with its financial obligations.

21. The aforementioned being clarified, the Single Judge concluded that, by failing to make the payment of the second instalment of the transfer compensation and being in default for at least 5 days, as demonstrated by the date on which the default notice was sent by the Claimant to the Respondent, clause 3.2 of the transfer agreement was activated and, on top of the outstanding amounts due to the Claimant, i.e. EUR 200,000, a penalty of 10% thereof fell due, as well as an interest rate of 15% p.a. that started running as from that date.

22. Albeit automatically activated upon the Respondent’s non-compliance for 5 days, clause 3.2 of the transfer agreement was subject of analysis by the Single Judge, who considered that a penalty of EUR 20,000, i.e. 10% of EUR 200,000, is to be considered valid, insofar it was contractually agreed between the parties, and is proportionate in accordance with the jurisprudence of the Players’ Status Committee, which considers that, albeit the analysis of the validity of a penalty clause is a matter that must be subject of a case by cases analysis, a penalty that does not exceed 50% of the main outstanding amount maybe be considered balanced and proportionate.

23. In connection with the interest rate of 15% agreed between the parties in the aforementioned contractual stipulation, the Single Judge referred to both, the jurisprudence of the Players’ Status Committee and the provisions of the Swiss Code of Obligations, which provide that, in case of default of payment, an interest at the maximum rate of 18% p.a. may be payable by the debtor to the creditor if so contractually agreed. In this regard, the Single Judge concluded that, since the percentage of 15% p.a. falls within the limit of 18% p.a., said interest shall be awarded to the Claimant, but only on the outstanding amounts.

24. Notwithstanding the aforementioned considerations, the Single Judge was adamant when he highlighted that, albeit applicable to the outstanding amount of EUR 200,000, the default interest of 15% p.a. would not be applicable to the penalty of EUR 20,000, insofar both contractual elements, the penalty and the interest, share the same punitive nature and, if jointly applied, the outcome of such application would lead to the issuance of a decision that would contravene an essential principle of law: non bis in idem; i.e. the right of a party to not be condemned twice for the same infraction.

25. Subsequently, the Single Judge referred to the claim of the Claimant, where the latter requested FIFA to carry out the investigation of the relevant proceedings applying the content of art. 12bis, which provides for specific sanctions when a party is in default of payment for more than 30 days without a prima facie contractual basis, provided that the creditor had put the debtor in default of payment, granting the latter, at least, a 10 days’ deadline to remedy the default.

26. In this context, the Single Judge observed that, whereas the amounts requested by the Claimant to the Respondent via its default notice dated 10 April 2020 were due at the time the default notice was sent to the Respondent, only 5 days had elapsed since said amounts fell due and, consequently, the first condition of art. 12bis, i.e. the period of 30 days that must have elapsed between the due date and the date on which the default notice was sent to the debtor, was not met. Thus, the Single Judge concluded that art. 12bis is not applicable to the matter at hand.

27. In light of the foregoing considerations and by virtue of application of the legal principle pacta sunt servanda, the Singe Judge concluded that the claim of the Claimant shall be partially accepted and that the Respondent shall pay EUR 220,000 to the Respondent, plus an interest of 15% p.a. on the amount of 200,000 as from 6 April 2020 until the date of effective payment.

II. Consequences

28. Taking into account the consideration with respect to the applicable Regulations previously outlined, 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.

29. 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.

30. 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.

31. Finally, 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.

E. Costs

32. Lastly, the Single Judge 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 Players’ Status Committee and the Single Judge, 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 and are normally to be paid by the unsuccessful party.

33. In this respect, the Single Judge reiterated that the Claimant’s claim is partially accepted and that, albeit invited to do so, the Respondent failed to reply to the claim within the deadline granted to the latter to do so. Therefore, the Single Judge decided that the costs of the present proceedings were to be shared by both parties and were to be paid as follows: CHF 1,000 by the Claimant and CHF 4,000 by the Respondent.

34. The Single Judge further observed the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which the maximum amount of procedural costs levied for any claim lodged prior to 10 June 2020, which was yet to be decided at the time of such temporary amendment, shall be equivalent to any advance of costs paid.

35. Accordingly, the Single Judge observed that the Claimant paid the amount of CHF 5,000 as advance of costs, and therefore decided that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

36. Consequently, the Single Judge determined that the Respondent shall pay the amount of CHF 4,000 in order to cover the costs of the present proceedings.

37. Subsequently, the Single Judge reverted to art. 17 par. 5 in combination with art. 18 of the Procedural Rules, and observed that the advance of costs paid by a party shall be duly considered in the decision regarding costs. Therefore, given that the Respondent is responsible to pay the amount of CHF 4,000, the Single Judge decided that the amount paid by the Claimant as advance of costs, i.e. CHF 5,000, shall be reimbursed to the latter by FIFA.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, FC Dynamo Kyiv, is partially accepted.

2. The Respondent, MKE Ankaragucu SK, has to pay to the Claimant, EUR 200,000, plus 15% interest p.a. as from 6 April 2020 until the date of effective payment.

3. The Respondent has to pay the Claimant EUR 20,000 as a penalty.

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 to FIFA (cf. note relating to the payment of the procedural costs below) as follows:

 1.

The amount of CHF 1,000 is to be paid by the Claimant.

2.

The amount of CHF 4,000 is to be paid by the Respondent.

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 PROCEDURAL COSTS:

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

DIRECTIONS WITH RESPECT TO THE APPEALS PROCEDURE BEFORE CAS

(Code of Sports-related Arbitration, 2017 edition)

The CAS appeals arbitration procedure is provided by articles R47 et seq. of the Code of Sports-related

Arbitration (2017 edition, hereafter: the Code). This procedure can be summarised as follows:

1. Any party intending to challenge a final motivated decision issued by a F IFA legal body, in

accordance with the FIFA Statutes, must file a statement of appeal with CAS within a twenty—onedaytime

limit starting from the receipt of the decision challenged (article 58 of the F IFA Statutes).

In order to file an appeal at CAS, it is necessary to have first requested that a full decision with the

grounds be issued by FIFA. An appeal against the operative part of a F IFA decision only is not

admissible.

The exact address of the Court of Arbitration for Sport is:

Court of Arbitration for Sport

Chateau de Béthusy

Avenue de Beaumont 2

CH-1012 Lausanne

Tel. (41.21) 613 50 00

Fax (41.21) 613 50 01

procedures@tas—cas.org

To be admissible, the statement of appeal shall be drafted imperatively in English or in French

(article R29 of the Code) and contain the following elements :

- the name and full address of the Respondent(s);

- a copy of the decision appealed against;

- the Appellant's request for relief;

- the appointment of the arbitrator chosen by the Appellant from the CAS list, unless the

Appellant requests the appointment of a sole arbitrator (clause 3 below); the list of CAS

members is published on www.tas-cas.org;

- if applicable, an application to stay the execution of the decision appealed against,

together with reasons (the statement of appeal filed with CAS does not stay automatically

the execution of the decision challenged, save for decisions which are exclusively of a

financial nature);

- a copy of the provisions of the statutes or regulations or the specific agreement providing

for appeal to the CAS;

- the evidence of the payment of the Court Office fee of CHF 1’000 (Credit Suisse, Rue

du Lion d'Or 5-7, CF. 2468, 1002 Lausanne; account n°: 0425-384033—71).

The arbitration procedure is allocated to a Panel composed of three arbitrators and constituted

pursuant to the rules provided by article R54 of the Code. The Appellant may however request that

a sole arbitrator be appointed by the President of the CAS Appeals Arbitration Division.

Within ten days following the expiry of the time limit for the filing of the statement of appeal, the

Appellant shall file with the CAS an appeal brief stating the facts and legal arguments giving rise to

the appeal, together with all exhibits and specifications of other evidence upon which it intends to

rely, failing which the appeal shall be deemed withdrawn (article R51 of the Code). Furthermore, in

its written submissions, the Appellant shall specify any witnesses, including a brief summary of their

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expected testimony, and experts, stating their area of expertise, whom it intends to call at the hearing

and state any other evidentiary measure which it requests.

Within twenty days from the receipt of the appeal brief, the Respondent shall submit to the CAS an

answer containing the following elements :

— a statement of defence;

- any defence of lack of jurisdiction;

- any exhibits or specification of other evidence upon which the Respondent intends to

rely, including the names of the witnesses, including a brief summary of their expected

testimony, and experts, stating their area of expertise, whom it intends to call at the

hearing.

The statement of appeal and any other written submissions, printed or saved on digital medium,

must be filed by courier delivery to the CAS Court Office by the parties in as many copies as there

are other parties and arbitrators, together with one additional copy for the CAS itself, failing which

the CAS shall not proceed. If they are transmitted in advance by facsimile or by electronic mail at

the official CAS email address (procedures@tas—cas.org), the filing is valid upon receipt of the

facsimile or of the electronic mail by the CAS Court Office provided that the written submission

and its copies are also filed by courier within the first subsequent business day of the relevant time

limit (article R31 of the Code).

The time limits fixed under the Code shall begin from the day after that on which notification by

the CAS is received. Official holidays and non-working days are included in the calculation of time

limits. The time limits fixed under the Code are respected if the communications by the parties are

sent before midnight, time of the location of their own domicile or, if represented, of the domicile

of their main legal representative, on the last day on which such time limits expire. If the last day of

the time limit is an official holiday or a non-business day in the location from where the document

is to be sent, the time limit shall expire at the end of the first subsequent business day (article R32

of the Code).

In accordance with articles R64 and R65 of the Code, the CAS determines the possible advance of

costs that the parties must pay to the CAS within a certain time limit. In the absence of payment of

such advance of costs, the appeal shall be deemed withdrawn and the CAS shall terminate the

arbitration.

For individuals, the CAS has created a legal aid fund. The form and the legal aid guidelines are

available on www.tas-cas.org. However, the payment of the Court Office fee of article R64.l or

R652 of the Code remains mandatory before any procedure may be initiated even though a request

for legal aid has been filed.

At the end of the written proceedings, the CAS summons the parties to a hearing, without prejudice

to article R57 §2 of the Code.

The CAS shall have full power to hear the case de novo. It may issue a new decision which replaces

the decision challenged or annul the decision and/or refer the case back to the competent authority

for a new decision.

The award, a summary and/or a press release setting forth the results of the proceedings shall be

made public by the CAS, unless both parties agree that they should remain confidential. A copy of

the award is notified to FIFA if the latter is not a party to the proceedings.

In case of discrepancy between the present document and the Code, the provisions of the Code shall

prevail.

2337'; Tribunal Arbitral du Sport

:'_’u;%.:_-; Court of Arbitration [or Sport

Schedule of arbitration costs in force as of 1 January 2017 (extract)

Administrative costs

The CAS fixes the administrative costs for each case of arbitration subject to Article R64 of the Code in

accordance with the table below, or at its discretion when the amount disputed is not declared or there is

no value in dispute. The value in dispute taken into consideration is the one indicated in the statement of

claim/appeal brief or in the counterclaim, if any, if it is higher. If the circumstances of a given case make

this necessary, the CAS may fix administrative costs at an amount above or below that shown on the table

below.

For a disputed sum

(in Swiss fiancs) Administrative costs

up to 50000 CHF 100.- to CHF 2'000.-

From 50'001 to 100'000 CHF 2000- + 1.50% of amount in excess of 50'000.-

From 100'001 to 500'000 CHF 2'750.- + 1.00% of amount in excess of 100'000.—

From 500'001 to 1'000'000 CHF 6'750.- + 0.60% of amount in excess of 500'000.-

From 1'000'001 to 2'500'000 CHF 9'750.- + 0.30% of amount in excess of 1'000'000.-

From 2'500'001 to 5'000'000 CHF 14'250.- + 0.20% of amount in excess of 2'500'000.-

From 5'000'001 to 10'000'000 CHF 19'250.- + 0.10% of amount in excess of 5'000'000.-

Above 10'000'000 CHF 25'000.-

Arbitrators' costs and fees

The amount of fees to be paid to each arbitrator is fixed by the Secretary General of the CAS on the basis

of the work provided by each arbitrator and on the basis of time reasonably devoted to their task by the

members of each Panel. In principle, the following hourly fees are taken into account:

For a disputed sum

(in Swiss Francs) Fees

Up to 2'500'000 CHF 300.-

From 2'500'001 to 5'000'000 CHF 350.-

From 5'000'001 to 10'000'000 CHF 400.-

From 10'000'001 to 15'000'000 CHF 450.-

Above 15'000'000 CHF 500.-