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 8 February 2018
Decision of the Single Judge
of the Players’ Status Committee
passed on 8 February 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 12 July 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, Player E (hereinafter: the player), from the Claimant to the Respondent.
2. In accordance with art. 3 of the transfer agreement, the Respondent undertook to pay to the Claimant inter alia the amount of EUR 1,000,000 as follows:
EUR 300,000 by 1 July 2017;
EUR 300,000 by 1 January 2018;
EUR 400,000 by 1 July 2018.
3. In accordance with art. 4 of the transfer agreement, the parties established that “In the event that the [Respondent] fails to pay to the [Claimant] on the due dates the amounts indicated [above] or makes only a partial payment an interest rate of 10% p.a. on the due amount will apply starting from the date of default. In the event of a delay of payment that lasts longer than thirty days, then the whole transfer fee that was not already paid will become immediately due and payable.”
4. By correspondence dated 1 September 2017, considering the non-payment of the first instalment of the transfer fee on 1 July 2017, the Claimant put the Respondent in default of payment of the total amount of EUR 1,000,000, setting a ten-day deadline in order to remedy the default.
5. On 11 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 1,000,000, corresponding to the aforementioned transfer fee.
6. Furthermore, as per art. 4 of the transfer agreement, the Claimant asks to be awarded interest of 10% p.a. as follows:
on the amount of EUR 300,000 from 2 July 2017 until 31 July 2017;
on the amount of EUR 1,000,000 from 1 August 2017 until the date of effective payment.
7. In reply to the claim, the Respondent held that the non-payment of the relevant amount was due to financial hardship.
8. In addition, the Respondent offered to pay “in as many instalments as possible”.
9. In its replica, the Claimant rejected the Respondent’s arguments and proposal.
10. The Respondent, in its duplica, insisted on its good faith and finally offered to “assign 50% of the credit arisen from the sell on fee agreed between the Respondent and the Club of Country F, Club G, in the transfer contract of the player Player H”.
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 11 October 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 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 (edition 2018), and considering that the present claim was lodged on 11 October 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.
11. 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 1,000,000 as follows:
EUR 300,000 by 1 July 2017;
EUR 300,000 by 1 January 2018;
EUR 400,000 by 1 July 2018.
5. 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 1,000,000 corresponding to the transfer fee agreed between the parties. The Claimant further asked that interest of 10% p.a. be awarded on the outstanding amount, in accordance with art. 4 of the transfer agreement.
6. In this context, the Single Judge took particular note of the fact that, on 1 September 2017, the Claimant put the Respondent in default of payment of the amount of EUR 1,000,000, setting a time limit of ten days in order to remedy the default.
7. 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.
8. Subsequently, the Single Judge 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 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.
9. Consequently, the Single Judge established that it is undisputed that the Respondent failed to remit the amount of EUR 300,000 payable to the Claimant on 1 July 2017, as set forth in the aforementioned transfer agreement, and that, considering the clear wording of art. 4 of the transfer agreement, on 1 August 2017, the entire amount of EUR 1,000,000 became due and payable.
10. 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.
11. On account of the above, the Single Judge decided to reject the argumentation put forward by the Respondent in its defence and established that the Respondent failed to remit to the Claimant the first instalment of the transfer fee, in the amount of EUR 300,000. What is more, and bearing in mind art. 4 of the transfer agreement, the Single Judge considered that the Respondent is liable for the payment of the transfer fee, in the total amount of EUR 1,000,000.
12. 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 Respondent must pay to the Claimant interest of 10% p.a. on the outstanding amount, as requested by the Claimant.
13. In continuation, taking into account the consideration under number II./10 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.
14. 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.
15. 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.
16. 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.
17. 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 1,000,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.
18. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 20,000 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 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 1,000,000, plus 10% interest p.a. as follows:
10 % p.a. on EUR 300,000 from 2 July 2017 until 31 July 2017;
10% p.a. on EUR 1,000,000 from 1 August 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. A warning is imposed on the Respondent.
5. The final costs of the proceedings in the amount of CHF 20,000 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 5,000 has to be paid to the Claimant.
5.2 The amount of CHF 15,000 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. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.1 are to be made and to notify 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 Single Judge
of the Players’ Status Committee:
Marco Villiger
Chief Legal & Integrity Officer
Encl. CAS directives