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 16 August 2017
Decision of the Single Judge
of the Players’ Status Committee
passed on 16 August 2017,
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 9 January 2017, the club of Country B, Club A (hereinafter: Claimant) and the club of Country D, Club C (hereinafter: Respondent) signed a transfer agreement regarding the transfer of the player, Player E , from the Claimant to the Respondent.
2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia EUR 70,000 in three instalments of EUR 20,000, EUR 25,000 and EUR 25,000, respectively, the last one falling due on “31 April 2017”.
3. Equally, the parties agreed upon the following:
“This document as well as every clause attachment to it and, or amendment are subject to the law of Country F and shall be governed by and construed and interpreted in accordance with the laws of Country F”.
4. By correspondence dated 26 June 2017, the Claimant put the Respondent in default of payment of the third instalment of the transfer fee in the amount of EUR 25,000, setting a 10 days’ time limit in order to remedy the default.
5. On 22 June 2017 and completed on 7 July 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 third instalment of the transfer fee.
6. The Claimant further asks to be awarded interest of 0.88‰ per day as from the due date on the basis of § 288 art. 1 and 2 of the “Civil Code of Country F” and that the Respondent be ordered to reimburse the advance of costs the Claimant paid at the beginning of the present proceedings.
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 22 June 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 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 22 June 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 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 70,000, payable in three instalments of EUR 20,000, EUR 25,000 and EUR 25,000, respectively, the last one falling due on “31 April 2017”.
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 EUR 25,000 corresponding to the last instalment of the transfer fee.
7. In this context, the Single Judge took particular note of the fact that, on 26 June 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 6 July 2017 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, 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.
10. 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.
11. 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 final instalment in the amount of EUR 25,000 on “31 April 2017”.
12. 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.
13. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the amount of EUR 25,000 to the Claimant.
14. 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.
15. 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 amount of EUR 25,000.
16. In addition, taking into consideration the Claimant’s request to be awarded interest as of the due date of the relevant instalment, the Single Judge decided to award interest of 5% p.a. on the amount of EUR 25,000 as of 1 May 2017 until the date of effective payment in accordance with the constant jurisprudence of the Players’ Status Committee.
17. 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.
18. 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 EUR 25,000, the Single Judge regarded a fine amounting to CHF 5,000 as appropriate and hence decided to impose said fine on the Respondent.
19. 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.
20. 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.
21. Taking into account 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 and that the claim of the Claimant has been almost 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 CHF 25,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.
22. In conclusion, taking into account the degree of success as well as that the Respondent never took stance in the procedure, the Single Judge of the Players’ Status Committee determined the costs of the current proceedings to CHF 5,000.
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 EUR 25,000, plus interest at the rate of 5% p.a. as from 1 May 2017 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. Any further claim of the Claimant is rejected.
5. The Respondent is ordered to pay a fine in the amount of CHF 5,000. The fine is to be paid within 30 days of notification of the present decision 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 final amount of costs of the proceedings of CHF 5,000 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 1,000 by the Respondent to the Claimant.
b) The amount of CHF 4,000 to FIFA to above-mentioned bank account of FIFA (cf. point 5.) with reference to case no. XXX.
7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 6.a) above are to be made and to notify the Single Judge 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:
Omar Ongaro
Football Regulatory Director
Encl. CAS directives