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 30 January 2018

Decision of the

Bureau of the Players’ Status Committee

passed by way of circulars on 30 January 2018,

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 14 September 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 permanent transfer of the player, Player E (hereinafter: the player), from the Claimant to the Respondent.

2. In accordance with article 2 paragraph 1 of the transfer agreement, the Respondent undertook to pay to the Claimant a transfer fee in the total amount of USD 200,000 in 2 instalments as follows: USD 100,000 before the international transfer certificate (ITC) is released; USD 100,000 during the first week of December 2016.

3. On 15 September 2016, the Football Association of Country B issued the relevant ITC in favour of the Football Federation of Country D.

4. By correspondence dated 17 July 2017, the Claimant put the Respondent in default of payment of USD 200,000 setting 28 July 2017 as the time limit within which to remedy the default.

5. On 3 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 USD 200,000 corresponding to the transfer fee.

6. The Claimant further asks to be awarded 5% interest p.a. as from September 2016 and that the Respondent be ordered to pay the “legal costs (as per established latest FIFA/CAS jurisprudence)”.

7. In reply to the claim, the Respondent merely held that it was trying to reach a settlement agreement with the Claimant and expressed its willingness to pay the outstanding amount to the Claimant.

8. Following the closure of the investigation in the present matter and communication to the parties that the present matter would be submitted to the deciding body for a formal decision, the parties signed a memorandum of understanding (hereinafter: MOU), as a result of which the FIFA administration refrained from submitting this matter to the deciding body at that stage.

9. In this respect, the Respondent submitted to FIFA a copy of the MOU signed by the parties on 27 October 2017.

10. In accordance with article 2 of the MOU, the Respondent undertook to pay to the Claimant the transfer fee set out in the aforementioned transfer agreement in the total amount of USD 200,000 in 2 instalments as follows: USD 100,000 on or before 5th November 2017; USD 100,000 on or before 15th December 2017.

11. Furthermore, article 3 of the MOU stipulated that, in case of non-compliance by the Respondent of its financial obligation stipulated in article 2 of the MOU or if the Claimant does not receive each payment within the given deadlines, the MOU shall be rendered null and void and any financial compensation due to the Claimant must be paid in full.

12. By correspondence dated 20 December 2017, the Claimant informed FIFA that the Respondent had failed to comply with its obligations arising from the MOU, which according to the Claimant triggers inter alia article 3 of the MOU. Accordingly, the Claimant asked that the original claim be re-activated and submitted for a formal decision.

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 3 July 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 2017 and 2018 editions of the Procedural Rules).

2. Subsequently, the Bureau referred to art. 3 paras. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 paras. 1 and 3 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 matter at stake, which concerns a contractual dispute between 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 (editions 2016 and 2018), and considering that the present claim was lodged on 3 July 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, inter alia, the total amount of USD 200,000 as follows: USD 100,000 before the international transfer certificate (ITC) is released; USD 100,000 during the first week of December 2016.

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 total amount of USD 200,000 corresponding to the first and second instalments of the transfer fee.

7. The Claimant further asked that interest at a rate of 5% p.a. be awarded on the outstanding amount as from September 2016 and that the Respondent be ordered to pay the legal costs.

8. In this context, the Bureau took particular note of the fact that, on 17 July 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit of 11 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 in its reply, the Respondent held that it was trying to reach a settlement agreement with the Claimant and that it did not deny that it owes USD 200,000 to the Claimant in respect of the transfer fee. Furthermore, the Bureau took note that, following the closure of the investigation, the parties signed a memorandum of understanding (hereinafter: MOU) according to which the Respondent undertook to pay to the Claimant the transfer fee set out in the aforementioned transfer agreement in the total amount of USD 200,000 in 2 instalments as follows: USD 100,000 on or before 5th November 2017; USD 100,000 on or before 15th December 2017 (article 2 MOU).

11. In continuation, the Bureau held that, according to article 3 MOU, in case of non-compliance by the Respondent of its financial obligation stipulated in article 2 of MOU or if the Claimant does not receive each payment within the given deadlines, the MOU shall be rendered null and void and any financial compensation due to the Claimant must be paid in full.

12. Having said this, the Bureau acknowledged that, as the Claimant requested the original claim to be re-activated and the case submitted for a formal decision, the Respondent was obliged to pay to the Claimant the amount of USD 200,000 in accordance with the abovementioned transfer agreement, since the Claimant did not receive any payment from the Respondent and therefore argued that the MOU became null and void.

13. 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.

14. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit the total amount of USD 200,000 payable to the Claimant.

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

16. 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 USD 200,000.

17. 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 USD 100,000 (first instalment) as from 15 September 2016 and on the amount of USD 100,000 (second instalment) as from 8 December 2016 until the date of effective payment.

18. In continuation, taking into account the consideration under number II./15. 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.

19. In this context, the Bureau highlighted that, on 9 July 2015, 24 November 2015, 7 June 2016, 29 July 2017 and 25 August 2017, 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 the Respondent having responded to the relevant claims, as a result of which fines had been imposed on the Respondent by the Single Judge of the Players’ Status Committee as well as bans on registering new players that would have come into force in the event that the Respondent would not have paid the amounts awarded within the time limit set by FIFA by the Bureau of the Players’ Status Committee.

20. Having said that, the Bureau established 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 sixth time.

21. Along these lines, the Bureau referred to art. 12bis par. 6 of the Regulations, which established that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty.

22. 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 six months following the notification of the present decision. If the Respondent commits another infringement during the six months’ probationary period, the suspension is automatically revoked and the registration ban executed.

23. 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.

24. In respect of the above, the Bureau reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Bureau concluded that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

25. 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, 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 USD 200,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

26. Considering the particular circumstances of the present matter, the Bureau 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 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, within 30 days as from the date of notification of this decision, overdue payables in the amount of USD 200,000;

- plus interest at a rate of 5% p.a. on the amount of USD 100,000 as from 15 September 2016 until the date of effective payment;

- plus interest at a rate of 5% p.a. on the amount of USD 100,000 as from 8 December 2016 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. Any further claim lodged by the Claimant is rejected.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

a) The amount of CHF 4,200 has to be paid to the Claimant.

b) The amount of CHF 15,800 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 is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.a) are to be made and to notify the Bureau of the Players’ Status Committee of every payment received.

7. 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 six 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.

*****

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

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS directives