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 29 July 2017

Decision of the

Bureau of the Players’ Status Committee

passed by way of circulars on 29 July 2017,

in the following composition:

Raymond Hack (South Africa), Chairman

Anna Peniche (Mexico), member

Geoff Thompson (England), 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 or about 13 September 2015, 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 of Country B, Player E (hereinafter: the player), from the Claimant to the Respondent.

2. In accordance with paragraph 3 of the transfer agreement, the Respondent undertook to pay to the Claimant a transfer fee in the total amount of USD 400,000 in 3 instalments as follows: USD 200,000 on 15 September 2015, USD 100,000 on 31 December 2015, and USD 100,000 on 31 March 2016.

3. In accordance with paragraph 7 of the transfer agreement, the Claimant “has the right to take [the Respondent] to FIFA Court of Arbitration for Sports”, if the Respondent is in default of the agreement.

4. By correspondence dated 3 February 2017, the Claimant put the Respondent in default of payment of USD 100,000 setting a 10 days’ time limit in order to remedy the default.

5. On 13 March 2017, the Claimant lodged a claim against the Respondent in front of FIFA requesting that the Respondent be ordered to pay to the Claimant overdue payables in the amount of USD 100,000, corresponding to the third instalment of the transfer fee.

6. The Claimant further asked to be awarded interest as from 31 March 2016 until the date of effective payment.

7. In reply to the claim, the Respondent merely held that the Players’ Status Committee is not competent to decide on the present matter, as paragraph 7 of the agreement refers to the “Court of Arbitration for Sports”.

8. In spite of FIFA’s subsequent invitation to the Respondent to do so, the Respondent did not submit its reply as to the substance of the matter.

II. Considerations of the Bureau of the Player’s Status Committee

1. First of all, the Bureau of the Players’ Status Committee (hereinafter: the Bureau) analysed whether it was competent to deal with the matter at hand. In this respect, the Bureau took note that the present matter was submitted to FIFA on 13 March 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 Procedural Rules).

2. Subsequently, the Bureau referred to the content of article 3 of the Procedural Rules and confirmed that in accordance with art. 23 paras 1 and 4 in combination with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition 2016; hereinafter: the Regulations), it would, in principle, be competent to deal with the matter at stake, which concerns a dispute between two football clubs affiliated to two different associations.

3. However, with regards to its competence, the Bureau remarked that in its statement of defence, the Respondent contested the competence of FIFA’s deciding bodies on the basis of paragraph 7 of the agreement, invoking that the latter refers to the “Court of Arbitration for Sports”.

4. Equally, the Bureau noted that the Claimant rejected such position and insisted that the present matter be decided upon by FIFA’s Players’ Status Committee.

5. In view of the above, the Bureau referred to the content of the agreement concluded between the Claimant and the Respondent, and in particular to paragraph 7 of the agreement according to which the Claimant “has the right to take [the Respondent] to FIFA Court of Arbitration”, if the Respondent is in default of the agreement.

6. In this respect, the Bureau was of the firm opinion that FIFA has jurisdiction to deal with the present matter as the arbitration clause mentioned above (point. II.5), even though not being entirely unambiguous, does refer to FIFA and is contradictory in itself. In this respect, the Bureau concluded that on the basis of paragraph 7 of the agreement, the clause explicitly mentions that FIFA is competent if the Respondent is in default of the agreement.

7. As a result, the Bureau established that the Respondent’s objection towards the competence of FIFA has to be rejected and that the Bureau of the Players’ Status Committee is competent, on the basis of art. 22 lit. f of the Regulations, to adjudicate on the present matter and the claim is, therefore, admissible.

8. Subsequently, the Bureau analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Bureau confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations (edition 2016) and considering that the claim in front of FIFA was lodged on 13 March 2017, the 2016 edition of said Regulations is applicable to the present matter as to the substance.

9. Its competence 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.

10. Having said this, the Bureau 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 amount of USD 100,000 corresponding to the third and last instalment of the transfer fee due on 31 March 2016.

11. The Bureau 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 amount of USD 100,000 corresponding to the third and last instalment of the transfer fee. The Claimant further asked that interest be awarded on the outstanding amount.

12. In this context, the Bureau took particular note of the fact that, on 3 February 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit of 10 days in order to remedy the default.

13. 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.

14. Subsequently, the Bureau took into account that the Respondent, for its part, failed to present its response as to the substance of the matter to the claim of the Claimant, in spite of having been invited to do so. In this way, the Bureau considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

15. Furthermore, as a consequence of the aforementioned consideration, the Bureau concurred that in accordance with art. 9 par. 3 of the Procedural Rules the Bureau shall take a decision upon the basis of the documents already on file, in other words, upon the statements and documents presented by the Claimant.

16. In continuation, the Bureau recalled that, in accordance with paragraph 3 of the transfer agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of USD 100,000 on 31 March 2016 corresponding to the third and last instalment of the transfer fee.

17. Taking into account the documentation presented by the Claimant in support of its petition, the Bureau concluded that the Claimant had substantiated its claim pertaining to overdue payables with sufficient documentary evidence.

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

19. In addition, the Bureau established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

20. Consequently, 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 total amount of USD 100,000.

21. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Bureau decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount USD 100,000 as from 1 April 2016 until the date of effective payment.

22. In continuation, taking into account the consideration under number II./19. 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.

23. In this context, the Bureau highlighted that, on 9 July 2015, 24 November 2015 and 7 June 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 without the Respondent having responded to the relevant claims, as a result of which fines had been imposed on the Respondent by the Single Judge of the Players’ Status Committee. 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.

24. In the context of the sanctions imposed on the Respondent in connection with overdue payables proceedings, the Bureau further took note that, on 26 May 2016, in an employment-related dispute, the Dispute Resolution Chamber had imposed a ban on the Respondent on registering any new players during two entire and consecutive registration periods following notification of the relevant decision and that said decision was notified on 16 September 2016. Said two entire and consecutive registration periods thus apply to the Country D registration periods of mid-December 2016 / mid-January 2017 and July 2017 / mid-September 2017.

25. Bearing in mind the consideration under number II./23. above as well as art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty, the Bureau decided that in the event that the Respondent does not pay the amount due to the Claimant within the 30 days following the notification of the present decision a ban from registering any new players, either nationally or internationally, for the next entire registration period 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.

26. 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 including its Bureau, 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.

27. Taking into account that the responsibility of the failure to comply with the payment of the amount as agreed in the transfer agreement can entirely be attributed to the Respondent, 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 USD 100,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

28. Considering the particular circumstances of the present matter, the Bureau 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 Bureau of the Players’ Status Committee

1. The claim of the Claimant, Club A, is admissible.

2. The claim of the Claimant is partially accepted.

3. 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 USD 100,000, plus interest at a rate of 5% p.a. as from 1 April 2016 until the date of effective payment.

4. If the aforementioned amount, 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.

5. Any further claim lodged by the Claimant is rejected.

6. The final costs of the proceedings in the amount of CHF 8,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

a) The amount of CHF 1,972 has to be paid to the Claimant.

b) The amount of CHF 6,028 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 3. and 6.a) are to be made and to notify the Bureau of the Players’ Status Committee of every payment received.

8. In the event that the amount 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 entire registration period following the notification of the present decision.

*****

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 Bureau of the

Players’ Status Committee

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS directives