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 5 September 2017

Decision of the Single Judge

of the Players’ Status Committee

passed on 5 September 2017

by

Mr Raymond Hack (South Africa)

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 23 December 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. Pursuant to art. 3 of the transfer agreement, the Respondent undertook to pay to the Claimant a transfer fee in the amount of EUR 270,000 net on 15 February 2017.

3. As per art. 4.7 of the transfer agreement, “If the [Respondent] fails to make the payments to [the Claimant] (…), [the latter] will be entitled to receive each year an interest of 10% on the outstanding amount until [the Respondent] has fully complied with its obligation.”

4. By correspondence dated 29 May 2017, the Claimant put the Respondent in default of payment of EUR 270,000 setting a time limit of ten days in order to remedy the default.

5. On 6 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 EUR 270,000 corresponding to the transfer compensation.

6. The Claimant further asks to be awarded, as per art. 4.7 of the transfer agreement, interest of 10% p.a. as of 15 February 2017 as well as the Respondent be ordered to pay legal costs.

7. In reply to the claim, the Respondent held that it currently encounters financial hardship and offers to pay in twenty monthly instalments the due amount to the Claimant.

II. Considerations of the Single Judge of the Player’s 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 6 July 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 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 6 July 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 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 an agreement, in accordance with which the Respondent undertook to pay to the Claimant inter alia the amount of EUR 270,000 net on 15 February 2017.

6. The Single Judge 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 270,000 corresponding to the transfer fee agreed between the parties.

7. In this context, the Single Judge took particular note of the fact that, on 29 May 2017, the Claimant put the Respondent in default of payment of the aforementioned amounts, 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, for its part, evoked its current financial hardship and offered a payment plan of twenty monthly instalments to the Claimant.

10. In this respect, the Single Judge established that it is undisputed that the Respondent failed to remit the total amount of EUR 270,000 payable to the Claimant as per the aforementioned transfer agreement.

11. Moreover, the Single Judge 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. The Single Judge also emphasised that, in accordance with the transfer agreement signed by both parties, the Respondent’s obligation of payment consists of a single payment of EUR 270,000, and that the parties did not agree upon a payment in twenty monthly instalments.

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 to reject the argumentation put forward by the Respondent in its defence and established that the Respondent failed to remit the transfer compensation in the amount of EUR 270,000 to the Claimant.

14. With regard to the interest requested by the Claimant (i.e. 10% p.a.), the Single Judge pointed out that such interest rate was contractually foreseen by the parties. Therefore, the Single Judge decided that the Claimant must pay to the Claimant interest of 10% p.a. on the amount of EUR 270,000 as of 16 February 2017 until the date of effective payment.

15. As regards the Claimant’s request relating to legal expenses, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to the Players’ Status Committee’s 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 in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent replied to the claim of the Claimant and in the absence of the circumstance of repeated offence, the Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

18. 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.

19. 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.

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 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 270,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

21. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 15,000 and which 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 270,000, plus 10% interest p.a. from 16 February 2017 until the date of effective payment.

3. If the aforementioned sum, 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 claims lodged by the Claimant are rejected.

5. A warning is imposed on the Respondent.

6. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Respondent, within 30 days as from the notification of the present decision, as follows:

6.1 The amount of CHF 5,000 has to be paid to the Claimant.

6.2 The amount of CHF 10,000 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

7. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 6.1 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 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 Single Judge

of the Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives