F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2020-2021) – fifa.com – atto non ufficiale – Decision 23 February 2021

Decision of the

Players' Status Committee

passed on 23 February 2021

regarding a dispute concerning the transfer of the player Teenage Lingani Hadebe

BY:

Roy Vermeer (Netherlands)

CLAIMANT:

Kaizer Chiefs FC, South Africa

RESPONDENT:

Yeni Malatyaspor, Turkey

I. Facts

1. On 10 July 2019, the South African club Kaizer Chiefs (hereinafter: ‘the Claimant’) and the Turkish club Yeni Malatyaspor (hereinafter: ‘the Respondent’) entered into a transfer agreement (hereinafter: ’the agreement’) for the player Teenage Lingani Hadebe (hereinafter: ‘the player’), in relation to the transfer of said player from the Claimant to the Respondent for a transfer compensation of USD 350,000.

2. Pursuant to art. 2 of the agreement, the parties agreed that the transfer compensation will be due and payable in three instalments as follows:

a) USD 125,000 to be paid ‘within 3 days of signature of the agreement’;

b) USD 125,000 to be paid on or before 30 December 2019; and

c) USD 100,000 to be paid on or before 30 January 2020

3. On 5 February 2020, the Claimant sent a notice of default to the Respondent, granting it a 5 days’ deadline to pay the following outstanding amounts:

a) USD 125,000, which was due and payable on or before 30 December 2019; and

b) USD 100,000, which was due and payable on or before 30 January 2020

4. On 10 February 2020, the Respondent acknowledged receipt of the Claimant’s default notice and its contractual obligations as per the agreement; however, it indicated that it is experiencing financial difficulties.

5. On 18 February 2020, the Claimant received a partial payment in the amount of USD 50,000 from the Respondent.

6. On 22 July 2020, the Claimant sent another notice of default to the Respondent, clarifying that the residual value of the transfer compensation in the amount of USD 175,000 is outstanding for more than 30 days.

7. On 15 September 2020, the Claimant received another partial payment in the amount of USD 25,000 from the Respondent.

8. On 16 November 2020, the Claimant lodged a claim against the Respondent before FIFA, claiming:

a) payment of the outstanding transfer fee in the amount of USD 150,000 net;

b) interest of 5% p.a. on the outstanding amount payable as follows:

- 5% p.a. on USD 50,000 net as from 31 December 2019 till the date of final payment;

- 5% p.a. on USD 100,000 net as from 31 January 2020 till the date of final payment.

c) refund of any procedural costs;

d) payment of costs;

e) a sanction in terms of FIFA RSTP art. 12bis subsection 4; and

f) application of FIFA RSTP art. 24bis

9. In its claim, the Claimant explained that it is an undisputed fact that the Claimant and Respondent concluded the agreement; however, the Respondent failed to comply with all the terms of the agreement, even after multiple correspondence and default notices were sent by the Claimant, requesting the outstanding payments.

10. On 15 December 2020, the Respondent in its reply to the claim, did not contest it’s payment obligation in respect of the agreement or denied the allegations in the Claimant’s claim, but

highlighted art. 3 of the agreement, which states:

"Solidarity contribution will be paid by Kaiser Chiefs for the deserving clubs”.

11. In this respect the Respondent advised that they made solidarity contribution payments in the following cases:

a) the amount of USD 3,500 to Highlanders FC under FIFA Ref. TMS 5504; and

b) the amount of USD 3,750 to Bantu Rovers FC under FIFA Ref. TMS 5151

12. In this regard, the Respondent requested that FIFA observe the solidarity compensation of USD 7,250 as made by the Respondent and deduct it from the amount of the claim.

13. In its reply to the position of the Respondent, the Claimant indicated that the transfer compensation should be paid free of any deductions as the parties agreed to a net transfer amount.

14. The Claimant alleged that the said art.3 of the agreement is unlawful “as art.21 of the RSTP is clear that solidarity compensation shall be distributed by the new club”.

15. According to the Claimant, the Respondent failed to submit substantiating evidence justifying its entitlement to deduct solidarity contribution from the transfer compensation.

16. In conclusion, the Claimant ask for the Respondent’s request to be dismissed.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC

1. First of all, the Players' Status Committee (hereinafter also referred to as the Single Judge) analysed whether he was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Players' Status Committee referred to art. 3 par. 1 of the Procedural Rules and emphasized that, in accordance with art. 24 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, the Players' Status Committee is competent to deal with disputes between clubs belonging to different associations.

3. In continuation, the Players' Status Committee analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Players' Status Committee confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 16 November 2020, the October 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Players' Status Committee entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Players' Status Committee emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge noted that, on 10 July 2019, the parties concluded an agreement for the permanent transfer of the player, from the Claimant to the Respondent, against payment of a transfer compensation in the amount of USD 300,000, which was payable in three instalments, as follows:

a) USD 125,000 to be paid ‘within 3 days of signature of the agreement’;

b) USD 125,000 to be paid on or before 30 December 2019; and

c) USD 100,000 to be paid on or before 30 January 2020

6. Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA against the Respondent, maintaining that the Respondent has overdue payables towards it in the total amount of USD 150,000, corresponding to the outstanding amount in respect of the agreed transfer fee.

7. The Single Judge took particular note of the fact that, on 5 February 2020, the Claimant, sent a notice of default to the Respondent, granting it a 5 days’ deadline to pay the following outstanding amounts:

a) USD 125,000, which was due and payable on or before 30 December 2019; and

b) USD 100,000, which was due and payable on or before 30 January 2020

8. In this context, the Single Judge observed that on 10 February 2020, the Respondent acknowledged receipt of the Claimant’s default notice and that on 18 February 2020, made a partial payment in the amount of USD 50,000.

9. The Single Judge further noted that on 22 July 2020, the Claimant sent another default notice, to the Respondent, indicating that the amount of USD 175,000 is outstanding for more than 30 days, on the basis of which the Respondent on 15 September 2020, made another partial payment in the amount of USD 25,000.

10. 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 obligation(s).

11. Subsequently, the Single Judge took into account that the Respondent, for its part, did not contest the claim of the Claimant; however, the Respondent in its reply merely alleged that based on the transfer agreement concluded between the parties, it is not responsible for the payment of solidarity contribution in the matter at hand, as this responsibility lies with the Claimant.

12. In this context, the Single Judge recalled the content of clause 3 of the transfer agreement, which reads as follows:

"Solidarity contribution will be paid by Kaiser Chiefs for the deserving clubs”.

13. Subsequently, the Single Judge took note that, the Respondent in its reply requested reimbursement in the amount of USD 7,250 as paid by the Respondent in the proceedings TMS 5504 and TMS 5151 solidarity contribution, by relying on the provisions of clause 3 of the transfer agreement.

14. Furthermore, the Single Judge observed that, the Respondent submitted evidence and provided payment confirmation, according to which the Respondent agreed to pay the total solidarity contribution amount of USD 7,250 to the following clubs:

a) the amount of USD 3,500 to Highlanders FC under FIFA Ref. TMS 5504; and

b) the amount of USD 3,750 to Bantu Rovers FC under FIFA Ref. TMS 5151.

15. In this regard, the Single Judge referred to art. 21 of the Regulations in combination with art. 1 of Annexe 5 of the Regulations which stipulate that, if a professional moves during the course of a contract, 5% of any compensation, not including training compensation paid to his former club, shall be deducted from the total amount of this compensation and be distributed by the new club as a solidarity contribution to the club(s) involved in the training and education of the player in proportion of the number of years the player has been registered with the relevant club(s) between the seasons of his 12th and 23rd birthday.

16. In addition, the Single Judge referred to the well-established jurisprudence of the Chamber regarding claims for solidarity contribution in which, on the one hand, a club involved in the training of the player claims solidarity contribution from the player’s new club, and, on the other hand, the new club of the player holds that the solidarity contribution should be paid by the player’s former club. According to this jurisprudence, it is the responsibility of the player’s new club to remit the relevant proportion of the 5% solidarity contribution to the club(s) involved in the player’s training in strict application of the relevant provisions of the Regulations.

17. Additionally, 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.

18. In this respect, since the Respondent was able to demonstrate that it had effectively paid the amount of USD 7,250, corresponding to the solidarity contribution as awarded per the proposals made in cases TMS 5454 and TMS 5151, the Single Judge therefore concluded that the request of the Respondent to be reimbursed with the solidarity contribution it had in the meanwhile paid to several training clubs of the player, but also was paid coincidently in full to the Claimant, was duly substantiated.

19. As a result of the aforementioned, the Single Judge decided that Claimant is liable to reimburse the amount of USD 7,250 to Respondent, as solidarity contribution in relation to the transfer of the player from the Claimant to the Respondent.

20. Furthermore, the Single Judge concluded that the Claimant had substantiated its claim pertaining to overdue payables with sufficient documentary evidence and that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

21. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the Claimant’s transfer fee in the amount of USD 150,000, corresponding to the outstanding transfer compensation fee under the transfer agreement.

22. 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 the total amount of USD 142,750, plus 5% interest p.a., which corresponds to the outstanding transfer fee of USD 150,000 less the solidarity contribution of USD 7,250.

23. In continuation, bearing in mind the foregoing considerations, 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.

24. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, 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.

25. Furthermore, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

26. In this regard, the Single Judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

27. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amounts due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

28. Finally, the Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations

29. Lastly, the Single Judge referred to the temporary amendments outlined in art. 18 par. 2 lit. ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which no procedural costs shall be levied for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), and determined given that the claim at hand was lodged on 3 July 2020, the decision shall be rendered free of costs.

III. Decision of the Players' Status Committee

1. The claim of the Claimant, Kaizer Chiefs FC, is partially accepted.

2. The Respondent, Yeni Malatyaspor, has to pay to the Claimant, the amount of USD 142,750 plus 5% interest p.a., as follows:

- 5% interest p.a. on USD 42,750 as from 31 December 2019 until the date of final payment; and

- % interest p.a. on USD 100,000 as from 31 January 2020 until the date of final payment.

3. A warning is imposed on the Respondent.

4. Any further claims of the Claimant are rejected.

5. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

6. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant of the relevant bank details to the Respondent, the following consequences shall arise:

 1.

The Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.

In the event that the payable amount as per in this decision is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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