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 23 March 2018
Decision of the
Bureau
of the Players’ Status Committee
passed by way of circulars on 23 March 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. On 11 October 2016, the club of Country B, Club A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), signed an agreement regarding the payment by the Respondent to the Claimant of the training compensation for the player, Player E (hereinafter: the player), in the amount of EUR 168,697.50 as follows:
EUR 44,697.50 on 15 January 2017;
EUR 44,000 on 15 April 2017;
EUR 40,000 on 15 July 2017;
EUR 40,000 on 15 September 2017.
2. Pursuant to art. 3 of the agreement, “In case of any delayed payment hereunder, [the Respondent] undertakes to pay 10% interest per year for overdue payment immediately at request of [the Claimant]”.
3. By correspondence dated 17 August 2017, the Claimant put the Respondent in default of payment of the third instalment, setting a time limit of ten days in order to remedy the default.
4. On 4 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 40,000 corresponding to the third instalment of the amount agreed by the parties for the payment of training compensation.
5. The Claimant further asks to be awarded, as per art. 3 of the agreement, interest of 10% p.a. as of 15 July 2017.
6. In its reply, the Respondent acknowledged the non-payment and stated that it is currently facing financial hardship.
7. The Respondent thereafter offered to pay the overdue amount in question in two equal instalments on 10 May 2018 and 10 July 2018, offer which was rejected by the Claimant.
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 4 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 4 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 168,697.50 as follows:
EUR 44,697.50 on 15 January 2017;
EUR 44,000 on 15 April 2017;
EUR 40,000 on 15 July 2017;
EUR 40,000 on 15 September 2017.
6. The Bureau further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the latter has overdue payables towards it in the total amount of EUR 40,000 corresponding to the third instalment of the aforementioned amount agreed between the parties. The Claimant further asked that interest of 10% p.a. be awarded on the outstanding amount, in accordance with art. 3 of the agreement.
7. In this context, the Bureau took particular note of the fact that, on 17 August 2017, the Claimant put the Respondent in default of payment of the amount of EUR 40,000, setting a time limit of ten days 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, evoked its current financial hardship and offered a payment plan to the Claimant, which declined it. 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.
10. Consequently, the Bureau established that it is undisputed that the Respondent failed to remit the amount of EUR 40,000 payable to the Claimant on 15 July 2017, as set forth in the aforementioned agreement.
11. In addition, the Bureau established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.
12. 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 40,000 corresponding to the third instalment of the agreed amount set forth in the agreement concluded between both parties.
13. With regard to the interest requested by the Claimant (i.e. 10% 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 10% p.a. on the outstanding amount, as requested by the Claimant.
14. In continuation, taking into account the consideration under number II./11. 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.
15. In this context, the Bureau highlighted that, on 2 June 2016 (case ref. nr. XXX), 13 September 2016 (case ref. nr. XXX) and 20 December 2017 (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 fourth time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.
16. 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.
17. Therefore and bearing in mind the considerations under numbers II./15. and II./16. above, the Bureau decided that in the event that the Respondent does not pay the amount due to the Claimant within 30 days following the notification of the present decision, a ban from registering any new players, either nationally or internationally, for the next two entire registration periods following the notification of the present decision shall become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) of the Regulations.
18. Moreover, in consideration of the present circumstances, and on account of 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 repeated offence as well as the fact that a ban was already imposed on the Respondent by the Bureau on 20 December 2017, the Bureau regarded a fine amounting to CHF 25,000 as appropriate and hence decided to impose said fine on the Respondent.
19. 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.
20. 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 40,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.
21. Considering the particular circumstances of the present matter, the Bureau determined the costs of the current proceedings in the amount of CHF 3,000 and 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 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 40,000, plus 10% interest p.a. as from 16 July 2017 until the date of effective payment.
3. In the event that the aforementioned amount, plus interest, due to the Claimant is not paid by the Respondent within the stated time limit, the Respondent shall be banned from registering any new players, either nationally or internationally, for the next two entire registration periods following the notification of the present decision.
4. 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 III.5.2 below with reference to case nr. XXX.
5. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Respondent, within 30 days as from the notification of the present decision, as follows:
5.1 The amount of CHF 1,000 has to be paid to the Claimant.
5.2 The amount of CHF 2,000 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. If the amount plus interest under point III.2 and the amount under III.5.1 are 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.
7. The Claimant is directed to inform the Respondent 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.
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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