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 21 December 2017

Decision of the Single Judge

of the Players’ Status Committee

passed on 21 December 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 5 July 2013, 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 of Country E, Player F, from the Claimant to the Respondent.

2. In accordance with clause 3.g. of the transfer agreement, the Respondent undertook to pay the amount of EUR 70,000 to the Claimant in the event of the Respondent qualifying to the UEFA Europa League 2016-17 group stage.

3. Clause 3.k. of the transfer agreement reads as follows:

“(…) in case of default of payment [Club A] shall be entitled to interest of 5% above EURIBOR and Club C shall Club A free and harmless on first demand from any and all costs, damages, losses (e.g. Court fees, attorney fees), accruing due to Club C not paying in due time”.

4. On 24 March 2017, the Claimant and the Respondent signed a “private agreement”, which refers to the aforementioned transfer agreement and, in particular, to its clause 3.g.

5. In accordance with the private agreement, the Respondent undertook to pay to the Claimant the amount of EUR 70,000 in the following three instalments: EUR 20,000 by 22 March 2017, EUR 20,000 by 30 May 2017 and EUR 30,000 by 30 July 2017.

6. Clause 2 of the private agreement stipulated that “all other clauses remain valid as agreed in the agreement”.

7. By correspondence dated 8 September 2017, the Claimant put the Respondent in default of payment of EUR 50,000, corresponding to the second and third instalments under the private agreement, setting a 10 days’ time limit in order to remedy the default.

8. On 25 October 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 50,000 corresponding to the second and third instalments under the private agreement.

9. The Claimant further asked to be awarded interest of 5% p.a. “above EURIBOR on all overdue payables according to clause 3.k. of the transfer agreement”, that the Respondent be ordered to pay EUR 1,531.90 as legal fees as well as “any and all costs accrued in connection with the proceedings including but not limited to procedural costs and attorneys fees” and that sanctions be imposed on the Respondent.

10. In reply to the claim, the Respondent did not dispute the claimed amount and highlighted that the debt is the result of its difficult financial situation.

11. Furthermore, the Respondent referred to art. 18 par. 4 of the Procedural Rules and rejected the Claimant’s claim for legal costs.

II. Considerations of the Single Judge of the Players’ 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 25 October 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is 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. 4 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 25 October 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 regarding the transfer of the player, Player F from the Claimant to the Respondent. Equally, the Single Judge noted that the Claimant and the Respondent concluded a private agreement, in accordance with which the Claimant was entitled to receive from the Respondent the amount of EUR 70,000 stipulated in clause 3.g. of the transfer agreement in three instalments as follows: EUR 20,000 by 22 March 2017, EUR 20,000 by 30 May 2017 and EUR 30,000 by 30 July 2017.

6. The Single Judge further observed that the Claimant argued that the Respondent had overdue payables towards it in the total amount of EUR 50,000, corresponding to the second and third instalments under the private agreement.

7. In this context, the Single Judge took particular note of the fact that, on 8 September 2017, the Claimant put the Respondent in default of payment of the aforementioned amount of EUR 50,000, setting a 10-days’ time limit 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, acknowledged having overdue payables to the Claimant as a result of its difficult financial situation.

10. Having said this, the Single Judge acknowledged that, in accordance with the private agreement provided by the Claimant, the Respondent was obliged to pay the amount of EUR 70,000 to the Claimant in three instalments of EUR 20,000 by 22 March 2017, EUR 20,000 by 30 May 2017 and EUR 30,000 by 30 July 2017.

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 the total amount of EUR 50,000 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 EUR 50,000.

15. In addition, the Single Judge noted that the Claimant further requested to be awarded interest of 5% p.a. “above EURIBOR” in accordance with clause 3.k. of the transfer agreement. In this respect, the Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

16. In this context, the Single Judge noted that the Claimant failed to meet the burden of proof as to the value of the relevant EURIBOR and, consequently, taking into account 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 amounts of EUR 20,000 and EUR 30,000 as from the day following the respective due dates, this is, as from 31 May 2017 and as from 31 July 2017 respectively, until the date of effective payment.

17. Moreover, the Single Judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Players’ Status Committee’s respective longstanding jurisprudence in this regard. In this regard, whilst referring to clause 3.k. of the transfer agreement, the wording of which in relation to legal fees is not entirely unambiguous, the Single Judge further highlighted that no evidence of fees or costs allegedly incurred by the Claimant was presented by the latter.

18. 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.

19. 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 the particular circumstances surrounding the matter at hand, the Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

20. 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.

21. 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.

22. Taking into account that the responsibility of the failure to comply with the payment of the claimed amount 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 EUR 50,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

23. Considering the particular circumstances of the present matter, and bearing in mind that the Respondent duly replied to the claim of the Claimant, the Single Judge determined the costs of the current proceedings to the amount of CHF 8,000 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 50,000, plus interest at the rate of 5% p.a. until the date of effective payment as follows:

- on the amount of EUR 20,000, as from 31 May 2017,

- on the amount of EUR 30,000 as from 31 July 2017.

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 lodged by the Claimant is rejected.

5. A warning is imposed on the Respondent.

6. The final amount of costs of the proceedings in the amount of CHF 8,000 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 2,000 by the Respondent to the Claimant.

b) The amount of CHF 6,000 to FIFA to the following bank account with reference to case no. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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) are to be made and to notify 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