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 9 December 2016

Decision of the Single Judge

of the Players’ Status Committee

passed on 9 December 2016,

by

Mr Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

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 17 December 2015, the Claimant and the Respondent signed a transfer agreement regarding the transfer of the player, Player E (hereinafter: the player) from the Claimant to the Respondent.

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia a transfer fee in the total amount of EUR 20,000, payable in three instalments of EUR 7,500, EUR 7,500 and EUR 5,000 until 31 January 2016, 15 April 2016 and 30 June 2016 respectively.

3. By email dated 19 September 2016, the Claimant put the Respondent in default of the payment of EUR 7,500, corresponding to the remaining outstanding sum of the second instalment of EUR 2,500 instalment as well as the full third instalment of the transfer fee, setting a time limit expiring on 30 September 2016 in order to remedy the default.

4. On 13 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 7,500 corresponding to the remaining outstanding sum of the second instalment amounting to EUR 2,500 as well as the full third instalment of the transfer fee.

5. The Claimant further asked to be awarded interest of 5% p.a. on EUR 2,500 as from 15 April 2016 and on EUR 5,000 as from 30 June 2016, and that the Respondent be sanctioned.

6. In reply to the claim, the Respondent confirmed owing such amount to the Claimant and explained that the overdue payables were not an effect of bad will, but rather the result of its difficult financial situation after the relegation from the top division of Country D. Consequently, the Respondent requested to be condemned to pay overdue payables to the Claimant “within 45 days from the notification” of the decision and that no additional costs of the proceedings be imposed.

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II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed which edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) were applicable to the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 13 September 2016. Consequently, the Single Judge concluded that the 2015 edition of the Procedural Rules are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players is applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players and, on the other hand, once again to the fact that the claim was lodged in front of FIFA on 13 September 2016. In view of the foregoing, the Single Judge concluded that the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand.

3. Furthermore, the Single Judge confirmed that, based on art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. f) of the Regulations, he was competent to deal with the present matter since it concerns a dispute between clubs affiliated to two different associations.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of EUR 20,000, payable in three instalments of EUR 7,500, EUR 7,500 and EUR 5,000 until 31 January 2016, 15 April 2016 and 30 June 2016 respectively.

6. The Single Judge further observed that, in its claim to FIFA, the Claimant argued that the Respondent had overdue payables towards it in the total amount of EUR 7,500, corresponding to the remaining outstanding sum of the second instalment, i.e. EUR 2,500, as well as the full third instalment of the transfer fee in the amount of EUR 5,000.

7. In this context, the Single Judge took particular note of the fact that, on 19 September 2016, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 30 September 2016 in order to remedy the default.

8. Consequently, the Single Judge 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 Single Judge took into account that the Respondent, for its part, acknowledged having overdue payables to the Claimant as a result of its difficult financial situation.

10. Having said this, the Single Judge acknowledged that, in accordance with the transfer agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 20,000 payable in three instalments of EUR 7,500, EUR 7,500 and EUR 5,000 until 31 January 2016, 15 April 2016 and 30 June 2016 respectively.

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

12. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit total outstanding amount of EUR 7,500 payable to the Claimant.

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

14. Consequently, the Single Judge 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 total amount of EUR 7,500.

15. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Single Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amounts of EUR 2,500 and EUR 5,000 as from the day following the due dates, this is, as from 16 April 2016 and as from 1 July 2016 respectively, until the date of effective payment.

16. In continuation, taking into account the consideration under number II./14. above, the Single Judge 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.

17. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent did reply to the claim of the Claimant, the Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

18. In this connection, the Single Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

19. Finally, 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 proceedings before the Players’ Status Committee including its Single Judge, 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.

20. Taking into account that the responsibility of the failure to comply with the payment of the amounts as agreed in the transfer agreement can entirely be attributed to the Respondent and that the claim of the Claimant has been fully accepted, the Single Judge 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 Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 7,500. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

21. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did reply to the claim of the Claimant, the Single Judge determined the costs of the current proceedings to the amount of CHF 3,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

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III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Club A, is 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 7,500, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

- on the amount of EUR 2,500, as from 16 April 2016, and

- on the amount of EUR 5,000 as from 1 July 2016.

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. A warning is imposed on the Respondent.

5. The final amount of costs of the proceedings in the amount of CHF 3,000 is to be paid by the Respondent, within 30 days as from the notification of the present decision, as follows:

a) The amount of CHF 944 by the Respondent to the Claimant.

b) The amount of CHF 2,006 to FIFA to the following bank account with reference to case no. XXXXXXXXXX:

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 point 2. and 5.a) are to be made and to notify the Players’ Status Committee of every payment received.

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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 Single Judge

of the Players’ Status Committee:

Marco Villiger

Deputy Secretary General

Encl: CAS directives