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 13 June 2016

Decision of the Single Judge

of the Players’ Status Committee

passed on 13 June 2016,

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 relating to the Player E in connection with overdue payables

I. Facts of the case

1. On 1 May 2014, the club from country B, Club A (hereinafter: Claimant), and the club from country D, Club C (hereinafter: Respondent), signed a transfer agreement regarding the transfer of the player, Player E (hereinafter: player), from the Claimant to the Respondent.

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia the total amount of EUR 3,315,000 payable in three equal instalments of EUR 830,000 on 15 January 2015, 15 July 2015 and 15 January 2016 as well as one instalment of EUR 825,000, respectively.

3. On 21 April 2016, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent to be ordered to pay overdue payables in the total amount of EUR 830,000 corresponding to the third instalment as stipulated in the transfer agreement.

4. Furthermore, the Claimant explained having put the Respondent in default of payment for a sum of EUR 830,000 by means of a correspondence dated 21 March 2016, setting a time limit of ten days in order to remedy the default.

5. Finally, The Claimant asked to be awarded interest at a rate of 5% per year as from 16 January 2016 until date of effective payment and requested that the Respondent has to pay “in the favour of the Claimant the legal expenses incurred”.

6. In its reply to the claim, the Respondent acknowledged the Respondent acknowledged not having paid the outstanding debt, however, claimed never having received the default notice nor the relevant bank details from the Respondent. In this respect, the Respondent deemed that the Claimant failed to put it in default in writing.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ 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 5 April 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; 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 5 April 2016, the 2015 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 3,315,000 payable in three equal instalments of EUR 830,000 on 15 January 2015, 15 July 2015 and 15 January 2016 as well as one instalment of EUR 825,000, respectively.

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 830,000 corresponding to the third instalment as stipulated in the transfer agreement.

7. In this context, the Single Judge took particular note of the fact that, on 21 March 2016, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit of ten days 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 acknowledged not having paid the overdue payables in the amount of EUR 830,000 invoking never having received the default notice nor the relevant bank details from the Respondent. In this respect, the Respondent deemed that the Claimant failed to put it in default in writing. On account of the above, the Single Judge turned his attention to the default notice on file and remarked that the Claimant provided the respective fax report, indicating that such default notice was effectively submitted to the Respondent.

10. 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.

11. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit total amount of EUR 830,000 payable to the Claimant.

12. 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.

13. 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 EUR 830,000.

14. 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 EUR 830,000 as from 16 January 2016 until the date of effective payment.

15. Subsequently, considering that the Claimant requested legal expenses, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to Players’ Status Committee’s 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 Single Judge decided to reject the Claimant’s request relating to legal expenses.

16. In continuation, taking into account the consideration under number II./12. 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.

17. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the Single Judge highlighted that, on 2 February 2016 as well as on 14 March 2016, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and with the Respondent having responded to the relevant claim, as a result of which a warning as well as a reprimand had been imposed on the Respondent by the Single Judge of the Player’s Status Committee.

18. Moreover, the Single Judge 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. Bearing in mind that the Respondent has replied to the claim of the Claimant as well as the considerations under numbers II./17. and II./18. above, 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 830,000, the Single Judge regarded a fine amounting to CHF 30,000 as appropriate and hence decided to impose said fine on the Respondent.

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 amounts as agreed in the transfer agreement can entirely be attributed to the Respondent and that the claim of the Claimant has been partially 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 EUR 830,000. Consequently, the Single Judge 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 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 EUR 830,000 as well as interest at a rate of 5% per year from 16 January 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 claims lodged by the Claimant, Club A, are rejected

5. The Respondent, Club C, is ordered to pay a fine in the amount of CHF 30,000, within 30 days as from the date of notification of the present decision to FIFA.

6. 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:

a) The amount of CHF 5,000 has to be paid to the Claimant, Club A.

b) The amount of CHF 15,000 has to be paid to FIFA.

7. The abovementioned amounts under points 5. and 6.b) are to be paid to FIFA to the following bank account with reference to case nr. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

8. 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 2. and 6.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:

Marco Villiger

Deputy Secretary General

Encl: CAS directives