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 20 February 2017

Decision of the Single Judge

of the Players’ Status Committee

passed on 20 February 2017,

by

Mr Johan van Gaalen (South Africa)

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 20 February 2016, the Club of Country B, Club A (hereinafter: “the Claimant”) and the Club of Country D, Club C (hereinafter: “the Respondent” signed a transfer agreement regarding the temporary transfer of the Player E (hereinafter: “the player”) from the Claimant to the Respondent as from 20 February 2016 until 23 December 2016.

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia the amount of USD 150,000 “within 15 working days after the date of accomplishment of the player´s registration as professional player” with the Respondent.

3. On 29 March 2016, the Claimant notified the Respondent that no payment had yet been received, whereas the 15 working days after the registration of the player with the Respondent had already passed.

4. By correspondence dated 21 November 2016, the Claimant put the Respondent in default of payment of USD 150,000 setting a time limit expiring on 2 December 2016, in order to remedy the default.

5. On 8 November 2016 and completed on 6 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 USD 150,000 corresponding to the entire loan fee.

6. The Claimant further asks to be awarded “legal interest” as well as legal and procedural costs.

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

II. Considerations of the Single Judge of the Player’s Status Committee

1. First of all, the Single Judge of the Player’s Status Committee (hereinafter: “the Single Judge”) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 8 November 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

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

3. Furthermore, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he 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 8 November 2016, the 2016 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

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 regarding a temporary transfer, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of USD 150,000, payable within 15 working days as from the date of the player´s registration with the Respondent.

6. The Single Judge further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of USD 150,000.

7. In this context, the Single Judge took particular note that, on 29 March 2016, the Claimant notified the Respondent that no payment had yet been received despite the fact that the 15 working days after the player´s registration with the Respondent had already passed [cf. lit d) point 2. of the transfer agreement]. As a consequence, the Single Judge pointed out that prima facie, the Claimant was entitled to receive the requested loan fee from the Respondent.

8. In addition, the Single Judge noted that, on 21 November 2016, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 2 December 2016 in order to remedy the default.

9. 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.

10. Subsequently, the Single Judge 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 Single Judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

11. Furthermore, as a consequence of the aforementioned consideration, the Single Judge concurred that in accordance with art. 9 par. 3 of the Procedural Rules he 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.

12. 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 USD 150,000 within 15 days from the date of the player´s registration with the Respondent.

13. 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.

14. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit total amount of USD 150,000 payable as loan fee to the Claimant.

15. 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.

16. 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 USD 150,000.

17. 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 amount of USD 150,000 as from 8 November 2016 until the date of effective payment.

18. Furthermore, as regards the claimed legal expenses, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its 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 Singe Judge decided to reject the Claimant’s request relating to legal costs.

19. In continuation, taking into account the consideration under number II./9. 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.

20. 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 not reply to the claim of the Claimant, the Single Judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of USD 150,000, the Single Judge regarded a fine amounting to CHF 15,000 as appropriate and hence decided to impose said fine on the Respondent.

21. 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.

22. 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.

23. 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 USD 150,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

24. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did not reply to the claim of the Claimant, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000 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 Single Judge 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 USD 150,000, plus interest at the rate of 5% p.a. as from 8 November 2016 until the date of effective payment.

3. In the event that the amount due to the Claimant is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. Any further request filed by the Claimant is rejected.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Single Judge of every payment received.

6. The Respondent is ordered to pay a fine in the amount of CHF 15,000. The fine is to be paid within 30 days of notification of the present decision 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

7. The final amount of costs of the proceedings in the amount of CHF 20,000 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 4,000 directly to the Claimant.

b) The amount of CHF 16,000 to FIFA to above-mentioned bank account of FIFA (cf. point 6.).

8. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 2. and 7.a) are to be made and to notify the Single Judge of every payment received.

*****

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:

Omar Ongaro

Chief Legal & integrity Officer

Encl: CAS directives