F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 12 May 2017

Decision of the

Bureau

of the Players’ Status Committee

passed by way of circulars on 12 May 2017,

in the following composition:

Raymond Hack (South Africa), Chairman

Anna Peniche (Mexico), member

Johan van Gaalen (South Africa), member

on the claim presented by the club,

Club A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding a contractual dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 10 August 2014, Club A (hereinafter: the Claimant) and Club C (hereinafter: the Respondent) signed a transfer agreement regarding the temporary transfer of Player E (hereinafter: the player) from the Claimant to the Respondent from 12 August 2014 until 5 August 2015.

2. Pursuant to art. 5 of the transfer agreement, the Respondent was entitled to request from the Claimant, by fax or registered mail, the definitive transfer of the player by no later than 21 July 2015, against the payment by the Respondent of a compensation amounting to EUR 2,858,820 net, in five instalments of EUR 571,764 each, respectively due on 31 August 2015, 28 February 2016, 31 August 2016, 28 February 2017 and 31 August 2017.

3. Art. 5 of the transfer agreement further provided that “The abovementioned amount shall be paid by [the Respondent] on the due dates for payment by bank transfer, to the account that [the Claimant] will communicate in writing”.

4. Pursuant to art. 6 of the transfer agreement, “In the event that [the Respondent] fails to pay to [the Claimant] on due dates the amounts indicated (…) or makes only a partial payment, then an interest rate of 5% p.a. will apply starting from the date of default”.

5. On 15 July 2015, the Respondent exercised its purchase right for the definitive acquisition of the player.

6. By correspondence dated 14 November 2016, the Claimant put the Respondent in default of payment of EUR 571,764 setting a 10 days’ time limit in order to remedy the default.

7. On 7 December 2016, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to it overdue payables in the amount of EUR 571,764 corresponding to the third instalment of the transfer compensation.

8. The Claimant further asked to be awarded, as per art. 6 of the transfer agreement, interest of 5% p.a. as of 1 September 2016, and that the Respondent be ordered to pay legal expenses and all procedural costs.

9. In reply to the claim, the Respondent held that it failed to proceed with the payment of the relevant instalment since the Claimant had allegedly not provided it with its bank account details, thus breaching art. 5 of the transfer agreement. The Respondent further alleged that it did not receive the default notice dated 14 November 2016 allegedly sent by fax.

10. In its replica, the Claimant rejected all of the Respondent’s arguments and upheld its claim in full.

11. In its duplica, the Respondent disregarded the Claimant’s line of argumentation and reiterated its position.

II. Considerations of the Bureau of the Player’s Status Committee

1. First of all, the Bureau of the Players’ Status Committee (hereinafter: the Bureau) analysed whether it was competent to deal with the matter at hand. In this respect, the Bureau took note that the present matter was submitted to FIFA on 7 December 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Bureau referred to art. 3 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and par. 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition 2016) the Bureau is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations.

3. Furthermore, the Bureau analysed which regulations should be applicable as to the substance of the matter. In this respect, the Bureau confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 7 December 2016, the 2016 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Bureau and the applicable regulations having been established, the Bureau entered into the substance of the matter. In this respect, the Bureau started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Bureau emphasised 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. Having said this, the Bureau acknowledged that the Claimant and the Respondent signed a transfer agreement, in accordance with which the Claimant was entitled to receive from the Respondent, for the permanent transfer of the player, the amount of EUR 2,858,820 net, payable in five instalments of EUR 571,764 each, respectively due on 31 August 2015, 28 February 2016, 31 August 2016, 28 February 2017 and 31 August 2017.

6. The Bureau further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA on 7 December 2016, maintaining that the Respondent has overdue payables towards it in the amount of EUR 571,764 corresponding to the third instalment of the agreed transfer compensation. The Claimant further asked that interest of 5% p.a. be awarded on the outstanding amount in accordance with art. 6 of the transfer agreement.

7. In this context, the Bureau took particular note of the fact that, on 14 November 2016, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 10 days’ time limit in order to remedy the default.

8. Subsequently, the Bureau took into account that the Respondent acknowledged not having paid the overdue payables in the amount of EUR 571,764, invoking not having received the relevant bank details from the Claimant. In addition, the Respondent held that the Claimant failed to put it in default in writing.

9. In this respect, the Bureau first turned its attention to the default notice on file and observed that the Claimant provided the respective positive fax transmission report, indicating that the default notice dated 14 November 2016 was effectively notified to the Respondent on that day.

10. Therefore, the Bureau could not uphold the Respondent’s position in this regard and concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligations.

11. Turning its attention to the Respondent’s argumentation related to the Claimant’s bank account details, the Bureau took into account that the Respondent had already been in possession of the Claimant’s banking details in the context of the instalments of the transfer compensation that had previously fallen due.

12. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit the third instalment of the transfer compensation in the amount of EUR 571,764 to the Claimant.

13. In addition, the Bureau established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

14. Consequently, the Bureau decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the amount of EUR 571,764 corresponding to the third instalment of the agreed transfer compensation.

15. Moreover, and as per art. 4 of the transfer agreement, the Bureau decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 571,764 as of 1 September 2016 until the date of effective payment.

16. As regards the Claimant’s request relating to legal expenses, the Bureau referred to art. 18 par. 4 of the Procedural Rules as well as to Players’ Status Committee’s long-standing and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Bureau decided to reject the Claimant’s request relating to legal expenses.

17. In continuation, taking into account the consideration under number II./13. above, the Bureau referred to art. 12bis par. 2 of the Regulations which stipulates that any club found to have delayed a due payment for more than 30 days without a prima facie contractual basis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations. The Bureau established that in virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent.

18. In this context, the Bureau highlighted that, on 2 February 2016, 14 March 2016 and 13 June 2016, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and without providing valid reasons for non-payment, as a result of which a warning, a reprimand and a fine had been imposed on the Respondent by the Single Judge of the Players’ Status Committee, respectively. Consequently, the Bureau established that, for the fourth time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.

19. Subsequently, the Bureau referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty.

20. Therefore and bearing in mind the consideration under number II./18. above, the Bureau decided that in the event that the Respondent does not pay the amount due to the Claimant within the 30 days following the notification of the present decision, a ban from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision shall become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) of the Regulations.

21. Finally, the Bureau referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in proceedings before the Players’ Status Committee including its Bureau, costs in the maximum amount of CHF 25,000 are levied and which states that 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.

22. Taking into account that the claim of the Claimant has been accepted and that the responsibility of the failure to comply with the payment of the amount as agreed in the transfer agreement can entirely be attributed to the Respondent, the Bureau concluded that the Respondent has to bear the costs of the current proceedings before FIFA. 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. On that basis, the Bureau held that the amount to be taken into consideration in the present proceedings is EUR 571,764. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

23. Considering the particular circumstances of the present matter, the Bureau determined the costs of the current proceedings to the amount of CHF 25,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

III. Decision of the Bureau of the Players’ Status Committee

1. The claim of the Claimant, Club A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as of the date of notification of this decision, overdue payables in the amount of EUR 571,764 as well as interest at the rate of 5% per year as of 1 September 2016 until the date of effective payment.

3. If the aforementioned amount, plus interest, is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee, for consideration and a formal decision.

4. Any further claim of the Claimant is rejected.

5. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

5.1 The amount of CHF 5,000 has to be paid to the Claimant.

5.2 The amount of CHF 20,000 has to be paid to FIFA to the following bank account with reference to case nr. XXXXXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.1 are to be made and to notify the Bureau of the Players’ Status Committee of every payment received.

7. In the event that the amount due to the Claimant is not paid by the Respondent within the stated time limit, the Respondent shall be banned from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision.

*****

Note relating to the motivated decision (legal remedy):

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Bureau

of the Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives