F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 20 December 2017

Decision of the

Bureau

of the Players’ Status Committee

passed by way of circulars on 20 December 2017,

in the following composition:

Raymond Hack (South Africa), Chairman

Anna Peniche (Mexico), 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 13 June 2017, Club A (hereinafter: the Claimant) and Club C (hereinafter: 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 compensation in the total amount of EUR 50,000 in two instalments:

 EUR 25,000 on 15 July 2017;

 EUR 25,000 on 15 July 2018.

3. By correspondence dated 17 October 2017, the Claimant put the Respondent in default of payment of the first instalment of the transfer compensation, setting a time limit expiring on 28 October 2017 in order to remedy the default.

4. On 12 October 2017, and completed on 30 October 2017, 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 first instalment of the transfer compensation.

5. The Claimant further asks to be awarded interest “based on R.45, art.104 of the Swiss Code of Obligations”.

6. On 23 November 2017, the Respondent requested an extension of the deadline in order to provide its position to the claim of the Claimant.

7. In spite of having been granted the aforesaid, the Respondent did not reply to the claim.

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 12 October 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; 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 12 October 2017, 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 the amount of EUR 50,000, payable in two equal instalments of EUR 25,000, respectively due on 15 July 2017 and 15 July 2018.

6. The Bureau 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 amount of EUR 25,000 corresponding to the first instalment of the agreed transfer compensation. The Claimant further asked to be awarded interest “based on R.45, art.104 of the Swiss Code of Obligations”.

7. In this context, the Bureau took particular note of the fact that, on 17 October 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a limit expiring on 28 October 2017 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. Having said this, the Bureau 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 50,000 in two equal instalments of EUR 25,000 each, respectively on 15 July 2017 and 15 July 2018.

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 total amount of EUR 25,000 payable to the Claimant as first instalment of the agreed transfer compensation.

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 total amount of EUR 25,000.

16. In addition, 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 12 October 2017 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. 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 17 April 2015 (case ref. XXX), on 4 February 2016 (case ref. XXX), on 29 July 2016 (case ref. XXX), on 24 November 2016 (case ref. XXX, XXX, XXX) and on 23 March 2017 (case ref. XXX), 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 diverse sanctions had been imposed on the Respondent by the relevant decision-making bodies of FIFA.

19. In particular, the Bureau noted that on the basis of these circumstances, on 24 November 2016, the Dispute Resolution Chamber (DRC) decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for one entire registration period, the execution of which is suspended during a probation period of one year following the notification of the relevant decision, i.e. as of 11 January 2017. According to said decision, if the Respondent would commit another infringement during the probationary period, the suspension is automatically revoked and the registration ban executed.

20. With the above in mind, the Bureau highlighted that in the present matter, the Respondent is found to have delayed a due payment for more than 30 days without a prima facie contractual basis for the eighth time. What is more, the Bureau wished to emphasise that the facts giving rise to the present dispute, i.e. the non-payment of the amount of EUR 25,000 due on 15 July 2017, occurred after the entry into force of the aforementioned one-year probationary period faced by the Respondent as of 11 January 2017.

21. Therefore, and bearing in mind the aforementioned considerations as well as referring to art. 12bis par. 8 of the Regulations, the Bureau decided that the ban of one registration period, imposed in case XXX, shall become effective as of the notification of the present decision insofar as the Respondent is considered to have committed another infringement during the probationary period and that such infringement occurred after the entry into force of the aforesaid probationary period (cf. point II.20. above).

22. Furthermore, and in due consideration of the present circumstances as well as taking into account art. 12bis par. 5 of the Regulations, the Bureau decided to impose, in addition to the aforementioned, a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Taking into consideration the above and that the amount due is of EUR 25,000 as well as the aggravating circumstance of a repeated offence, the Bureau regarded a fine amounting to CHF 25,000 as appropriate and hence decided to impose said fine on the Respondent.

23. In addition to all the above, and alluding to art. 12bis par. 4 lit. d) in conjunction with art. 12bis par. 7 and 8 of the Regulations, the Bureau decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for one entire registration period. The execution of this registration ban is suspended during a probation period of eighteen months following the notification of the present decision. If the Respondent commits another infringement during the eighteen-month probationary period, the suspension is automatically revoked and the registration ban executed.

24. 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.

25. Taking into account that the claim of the Claimant has been accepted and that the Respondent did not reply to the claim, 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.

26. Considering the particular circumstances of the present matter, 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 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 25,000 as well as interest at the rate of 5% per year as of 12 October 2017 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. 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:

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

4.2 The amount of CHF 4,000 has to be paid to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 4.1 are to be made and to notify the Bureau of the Players’ Status Committee of every payment received.

6. The suspension of the ban, imposed on the Respondent in case XXX, is lifted and, thus, 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.

7. The Respondent shall be additionally banned from registering any new players, either nationally or internationally, for one registration period. The execution of this registration ban is suspended during a probation period of eighteen months following the notification of the present decision. If the Respondent commits another infringement during the probationary period, the suspension is automatically revoked and the registration ban executed.

8. The Respondent is ordered to pay a fine in the amount of CHF 25,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the bank account foreseen in point 4.2 above with reference to case nr. XXX.

*****

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