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 25 August 2017

Decision of the

Bureau of the Players’ Status Committee

passed by way of circulars on 25 August 2017,

in the following composition:

Raymond Hack (South Africa), Chairman

Anna Peniche (Mexico), member

Johan van Gaalen (South Africa), 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 23 January 2017, the Club of Country B, Club A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent) signed a loan agreement regarding the transfer of the player, Player E (hereinafter: player) from the Claimant to the Respondent.

2. In accordance with the loan agreement, the Respondent undertook to pay to the Claimant inter alia EUR 200,000 as follows: EUR 100,000 on 28 February 2017 and EUR 100,000 on 30 April 2017. As further specified in the loan agreement, the Claimant was entitled “to invoice 95% of the transfer fee specified in this agreement” and the Respondent “shall transfer the remaining 5% to the sports associations (..) that participated in the training of the football player in the period between his 12th and 23th birthday (..)”.

3. By correspondence dated 6 April 2017, the Claimant put the Respondent in default of payment of the amount EUR 95,000 setting a 10 days’ time limit in order to remedy the default. The amount in question corresponds to the first instalment due as per the loan agreement minus 5% that was to be distributed by the Respondent as solidarity contribution (cf. point I.2 above).

4. On 16 June 2017, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay overdue payables in the amount of EUR 95,000 corresponding to first instalment due as per the loan agreement, minus 5% that was to be distributed by the Respondent as solidarity contribution.

5. The Claimant further asks to be awarded unspecified interest and that the Respondent be ordered to pay legal costs in the amount of EUR 5,000.

6. In spite of having been invited to do so, the Respondent did not reply to the claim.

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

1. First of all, the Bureau of the Players’ Status Committee (hereinafter also referred to as: Bureau) analysed whether it was competent to deal with the present matter. In this respect, it took note that the present matter was submitted to FIFA on 16 June 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 art. 3 paras. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 paras. 1 and 3 in conjunction with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (edition 2016) it is competent to deal with the matter at stake, which concerns a contractual dispute between clubs affiliated to different associations.

3. Furthermore, the Bureau analysed which regulations should be applicable as to the substance of the matter. In this respect, it 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 16 June 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 Bureau 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.

5. Having said this, the Bureau acknowledged that the Claimant and the Respondent signed a loan agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of EUR 200,000 as follows: EUR 100,000 on 28 February 2017 and EUR 100,000 on 30 April 2017.

6. Furthermore, the Bureau noticed that, in accordance with the loan agreement, the Claimant was entitled “to invoice 95% of the transfer fee specified in this agreement” and the Respondent “shall transfer the remaining 5% to the sports associations (..) that participated in the training of the football player in the period between his 12th and 23th birthday (..)”.

7. 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 total amount of EUR 95,000 corresponding to the first instalment due as per the loan agreement, minus 5% that was to be distributed by the Respondent as solidarity contribution.

8. The Claimant further asks to be awarded the amount of EUR 5,000 pertaining to the legal costs and to pay the relevant procedural costs.

9. In this context, the Bureau took particular note of the fact that, on 6 April 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.

10. 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.

11. Subsequently, the Bureau took into account that the Respondent, for its part, failed to present its response 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.

12. Furthermore, as a consequence of the aforementioned consideration, the Bureau concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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.

13. Having said this, the Bureau acknowledged that, in accordance with the loan agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 200,000 in two instalments as follows: EUR 100,000 on 28 February 2017 and EUR 100,000 on 30 April 2017 whereas 5% of the relevant amounts could be deducted by the Respondent as solidarity contribution in connection with the player.

14. 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.

15. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit the total amount EUR 95,000 payable to the Claimant.

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

17. 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 EUR 95,000.

18. In addition, taking into account the Claimant’s unspecified request as well as 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 amount EUR 95,000 as from 16 June 2017 until the date of effective payment.

19. Furthermore, as regards the claimed legal expenses, the Bureau referred to art. 18 par. 4 of the Procedural Rules as well as to the long-standing and well-established jurisprudence of the Players’ Status Committee, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Bureau decided to reject the Claimant’s request relating to legal expenses.

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

21. The Bureau established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. In this context, the Bureau highlighted that, on 29 October 2015 and on 19 June 2017 respectively, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, 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 the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis and without having answered to the claim for the third time.

22. Moreover, the Bureau referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty.

23. Bearing in mind the considerations under numbers II/20, II/21 and II/22 above, 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.

24. 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 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.

25. 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 and that the claim of the Claimant has been almost fully accepted, 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 Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 100,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

26. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did not reply to the claim of the Claimant, the Bureau determined the costs of the current proceedings to the amount of CHF 15,000 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 95,000, plus interest at the rate of 5% p.a. as from 16 June 2017 until the date of effective payment.

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 request filed by the Claimant is rejected.

5. The final amount of costs of the proceedings in the amount of CHF 15,000 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 2,986 by the Respondent to the Claimant.

b) The amount of CHF 12,014 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

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 a) above are to be made and to notify the Single Judge of every payment received.

7. In the event that the amount due to the Claimant as per point 2) above is not paid by the Respondent within 30 days as from the date of notification of this decision, 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:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives