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 23 January 2017

Decision of the

Bureau

of the Players’ Status Committee

passed by way of circulars on 23 January 2017,

in the following composition:

Sunil Gulati (USA), Chairman

Theo van Seggelen (Netherlands), member

Geoff Thompson (England), 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 27 July 2015, Club A (hereinafter: the Claimant), and Club C (hereinafter: the Respondent), signed an agreement regarding the loan transfer of the Player E (hereinafter: the player), from the Claimant to the Respondent.

2. In accordance with the loan agreement, the Respondent undertook to pay to the Claimant a loan compensation in the amount of EUR 50,000 in two equal instalments of EUR 25,000 on 25 August 2015 and on 31 May 2016, respectively.

3. By correspondence dated 4 July 2016, the Claimant put the Respondent in default of payment of the second instalment of the loan compensation in the amount of EUR 25,000 setting a time limit expiring on 15 July 2016 in order to remedy the default.

4. On 21 September 2016, and completed on 27 September 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 25,000 corresponding to the second instalment of the loan compensation as well as 5% interest p.a. as from 31 May 2016.

5. In spite of having been invited to do so, the Respondent has not replied to the claim.

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

1. First of all, the Bureau of the Player’s 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 21 September 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 21 September 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 loan agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the second instalment of the loan compensation in the amount of EUR 25,000 on 31 May 2016.

6. The Bureau further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA on 21 September 2016, maintaining that the Respondent has overdue payables towards it in the total amount of EUR 250,000 corresponding to the second instalment of the agreed loan compensation.

7. In this context, the Bureau took particular note of the fact that, on 4 July 2016, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 15 July 2016 in order to remedy the default.

8. Consequently, the Bureau 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.

9. Subsequently, the Bureau took into account that the Respondent, for its part, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Bureau considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

10. Furthermore, as a consequence of the aforementioned consideration, the Bureau concurred that, in accordance with art. 9 par. 3 of the Procedural Rules, it shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

11. In continuation, the Bureau recalled that, in accordance with the loan agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the second instalment in the amount of EUR 25,000 on 31 May 2016.

12. Taking into account the documentation presented by the Claimant in support of its petition, the Bureau concluded that the Claimant had substantiated its claim pertaining to overdue payables with sufficient documentary evidence.

13. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit the second instalment of the agreed loan compensation in the amount of EUR 25,000 to the Claimant.

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

15. 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 25,000 corresponding to the second instalment of the agreed loan compensation.

16. Moreover, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Bureau decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 25,000 as from 1 June 2016 until the date of effective payment.

17. In continuation, taking into account the consideration under number II./14. 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.

18. In this context, the Bureau highlighted that, on 17 April 2015, 11 September 2015 and 8 September 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 the non-payment, as a result of which fines and a registration ban with embargo 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. Along these lines, the Bureau established that in virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent. Moreover, 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. 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 two entire registration periods 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.

20. 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.

21. 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 25,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

22. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did not reply to the claim of the Claimant, the Bureau determined the costs of the current proceedings to the amount of CHF 5,000 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 from the date of notification of this decision, overdue payables in the amount of EUR 25,000 as well as interest at a rate of 5% per year as from 1 June 2016 until the date of effective payment.

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

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

a) The amount of CHF 1,000 has to be paid to the Claimant.

b) The amount of CHF 4,000 has to be paid to FIFA.

5. The abovementioned amount under point 4.b) is to be paid to FIFA to the following bank account:

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 4.a) are to be made and to notify the Bureau 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 two entire registration periods 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:

Marco Villiger

Deputy Secretary General

Encl: CAS directives