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 9 May 2018

Decision of the

Bureau

of the Players’ Status Committee

passed by way of circulars on 9 May 2018

in the following composition:

Raymond Hack (South Africa), Chairman

Geoff Thompson (England), 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. The Club of Country B, Club A (hereinafter: “the Claimant”), and the Club of Country D, Club C (hereinafter: “the Respondent”), signed an undated transfer agreement regarding the transfer of the player, Player E (hereinafter: “the player”) from the Claimant to the Respondent.

2. In accordance with clause 2 of the agreement, the Respondent undertook to pay to the Claimant the amount of EUR 1,500,000, in three equal instalments of EUR 500,000 each by 3 January 2017, 31 August 2017 and 29 December 2017, respectively.

3. Pursuant to clause 2 of the agreement, “The parties agree that in the event that Club C doesn´t pay one of the instalments on or before the date referred previously, CLUB C is obliged to pay annual interest of 8% for any instalments which is not paid in due time”.

4. By correspondence dated 31 October 2017 and 1 February 2018, the Claimant put the Respondent in default of payment of the second and third instalment, respectively, amounting to EUR 500,000 each, setting a 10 days’ time limit in order to remedy the defaults.

5. On 15 September 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 500,000 relating to the second instalment. On 15 February 2018, the Claimant amended its claim requesting that the Respondent be ordered to pay the third instalment of EUR 500,000 as well.

6. The Claimant further asks to be awarded, as per clause 2 of the agreement, interest of 8% p.a. as from the day following the respective due dates until the date of effective payment plus legal and procedural costs.

7. In its reply, the Respondent acknowledged the non-payment and stated that it is currently facing financial hardship. The Respondent thereafter offered to pay the overdue amount in question in two equal instalments on 20 April 2018 and 20 May 2018 to settle the present matter amicably.

8. No further correspondence was received by the parties.

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, it took note that the present matter was submitted to FIFA on 15 September 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: “the 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 2018), it 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, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the present claim was lodged on 15 September 2017, 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 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 an agreement, in accordance with which the Respondent undertook to pay to the Claimant inter alia the amount of EUR 1,500.000 as follows:

 EUR 500,000 on 3 January 2017;

 EUR 500,000 on 31 August 2017;

 EUR 500,000 on 29 December 2017.

6. The Bureau further acknowledged that the Claimant lodged a claim with a further amendment against the Respondent in front of FIFA, maintaining that the latter has overdue payables towards it in the total amount of EUR 1,000,000 corresponding to the second and third instalment agreed between the parties.

7. Furthermore, the Bureau noted that, the Claimant asked that interest of 8% p.a. be awarded on the outstanding amounts, in accordance with clause 2 of the agreement.

8. In this context, the Bureau took particular note of the fact that, on 31 October 2017 and 1 February 2018, the Claimant put the Respondent in default of payment of twice the amount of EUR 500,000 respectively, setting a time limit of ten days in order to remedy the default.

9. 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.

10. Subsequently, the Bureau took into account that the Respondent, for its part, evoked its current financial hardship and offered a payment plan to the Claimant, which in view of the lack of further communication by the latter, appears to been to no avail. In this respect, the Bureau considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant. In other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

11. Consequently, the Bureau established that it is undisputed that the Respondent failed to remit the amount of EUR 1,000,000 payable to the Claimant in two instalments amounting to EUR 500,000 each on 31 August 2017 and 29 December 2017 respectively, as set forth in the aforementioned agreement.

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

13. On account of the above, 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 1,000,000 corresponding to the second and third instalment of the agreed amount set forth in the agreement concluded between both parties.

14. With regard to the interest requested by the Claimant (i.e. 8% p.a.), the Bureau pointed out that such interest rate was contractually foreseen by the parties and was not excessive. Therefore, the Bureau decided that the Respondent must pay to the Claimant interest of 8% p.a. on the outstanding amounts, as requested by the Claimant.

15. Moreover and with regard to the Claimant’s request for legal costs, the Bureau decided to reject such request in accordance with article 18 par. 4 of the Procedural Rules as well as the Players’ Status Committee longstanding jurisprudence.

16. 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.

17. In this context, the Bureau highlighted that, on 2 June 2016 (case ref. nr XXX), 13 September 2016 (case ref. nr. XXX), 20 December 2017 (XXX) and 23 March 2018 (case ref. nr. 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 Single Judge of the Players’ Status Committee and its Bureau. Consequently, the Bureau established that, for the fifth time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.

18. 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.

19. Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis paras 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 probationary period of one year following the notification of the present decision. If the Respondent commits another infringement under art. 12 bis during the one year probationary period, the suspension shall be automatically revoked and the registration ban executed.

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, 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 responsibility of the failure to comply with the payment of the amounts as agreed in the agreement can entirely be attributed to the Respondent and that the Claimant has been the successful party, 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 1,000,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. Considering the particular circumstances of the present matter, the Bureau determined the costs of the current proceedings in the amount of CHF 20,000, which 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, Club A, within 30 days as from the date of notification of this decision, overdue payables in the amount of EUR 1,000,000, plus 8% interest p.a. as follows:

 over the amount of EUR 500,000 from 1 September 2017 until the date of effective payment and

 over the amount of EUR 500,000 from 30 December 2017 until the date of effective payment.

3. Any further claims lodged by the Claimant, Club A, are rejected.

4. If the amount plus interest under point III.2 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.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Respondent, Club C, 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, Club A.

5.2 The amount of CHF 15,000 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

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

7. The Respondent, Club C, 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 one year 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.

*****

Note relating to the motivated decision (legal remedy):

According to art. 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