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 2 March 2018

Decision of the Single Judge

of the Players’ Status Committee

passed on 2 March 2018,

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 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 transfer of the Player E (hereinafter: the player) from the Claimant to the Respondent.

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant inter alia a transfer fee in the total amount of USD 200,000 on 15 September 2016.

3. On 4 September 2017, the Claimant lodged a claim against the Respondent in front of FIFA requesting that the Respondent be ordered to pay overdue payables in the total amount of USD 100,000 corresponding to the outstanding amount of the transfer fee.

4. Furthermore, the Claimant explained having put the Respondent in default of payment for a sum of USD 100,000 by means of a correspondence dated 15 September 2017, setting a time limit of 10 days in order to remedy the default.

5. In its reply to the claim, the Respondent held that the club was facing some financial issues and acknowledged the debt in the amount of USD 100,000, offering the Claimant to pay this amount by 10 monthly instalments as from January 2018. However, the parties have not been able to settle this matter amicably.

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 4 September 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 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 2018) 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 (editions 2016 and 2018), and considering that the present claim was lodged on 4 September 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 USD 200,000 payable on 15 September 2016.

6. The Single Judge further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA requesting that the Respondent be ordered to pay overdue payables in the total amount of USD 100,000 due on 15 September 2016 and corresponding to the remaining amount of the transfer fee for the transfer of the player to the Respondent.

7. In this context, the Single Judge took particular note of the fact that, on 15 September 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring of 10 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 debt in the amount of USD 100,000 and offered the Claimant to pay this amount by 10 monthly instalments as from January 2018. However, the Single Judge noted that no agreement was reached by the parties in this regard.

10. Having said this, the Single Judge recalled that, in accordance with the transfer agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the total amount of USD 200,000, of which USD 100,000 remained outstanding.

11. 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.

12. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit total amount of USD 100,000 payable to the Claimant.

13. 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.

14. 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 USD 100,000.

15. In continuation, taking into account the consideration under number II./13. 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.

16. 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 reply to the claim of the Claimant, the Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

17. 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.

18. 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.

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

20. 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, 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 USD 100,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

21. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000 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 accepted.

2. The Respondent, Club C, has to pay to the Claimant, Club A, overdue payables in the amount of USD 100,000 within 30 days as from the date of notification of this decision.

3. In the event that the amount due to the Claimant, Club A, is not paid by the Respondent, Club C, within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. A warning is imposed on the Respondent, Club C

5. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision, as follows:

5.1. The amount of CHF 8,020 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

5.2. The amount of CHF 1,980 has to be paid directly to the Claimant, Club A.

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 2. and 5.2. are to be made and to notify the Single Judge of the Players’ Status Committee 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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives