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 9 February 2021

Decision of the Single Judge of the

Players Status Committee

passed on 9 February 2021

regarding a dispute concerning the transfer of the player Marko Marin

BY:

Stefano La Porta (Italy), member

CLAIMANT:

FK Crvena Zvezda, Serbia

Represented by Mr. Davor Radic

RESPONDENT:

Al Ahli Saudi FC, Saudi Arabia

I. FACTS OF THE CASE

1. On 5 January 2020, the Serbian club, FK Crvena Zvezda (hereinafter: the Claimant), and the Saudi club, Al Ahli Saudi FC (hereinafter: the Respondent), signed a transfer agreement by means of which the services of the player Marko Marin (hereinafter: the player) was transferred from the former to the latter (hereinafter: the transfer agreement).

2. In accordance with clause 2.1 of the transfer agreement, the Respondent undertook to pay to the Claimant the sum of EUR 1,700,000, as follows:

a. EUR 1,000,000 on 15 January 2020; and

b. EUR 700,000 on 20 July 2020.

3. In addition, clause 2.2 of the transfer agreement established the following: “In the event that [the Respondent] defaults in the payment of [the Claimant] of the second permanent transfer fee instalment for longer than 30 days, then the relevant sum payable shall be automatically irrevocably accrued with default interest payable at first demand at a rate of 10% p.a.”

4. On 4 August 2020, the Claimant sent a first notice to the Respondent and put it in default of payment of EUR 700,000.

5. On 7, 11, 13 and 17 August 2020, the Claimant sent the Respondent reminders regarding the outstanding amount.

6. On 21 August 2020, the Claimant sent the Respondent a second notice requesting the payment of EUR 700,000 and reverting to the content of clause 2.1 of the transfer agreement. In the same letter, the Claimant granted the Respondent a 10 days’ deadline in order to cure its breach.

7. Subsequently, on 25 and 27 of August 2020, the Claimant sent the Respondent new reminders of the payment, to no avail.

II. PROCEEDINGS BEFORE FIFA

8. On 23 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

9. According to the Claimant, the Respondent failed to comply with its financial obligations for more than 30 days.

10. In this regard, the Claimant remarked that it had duly notified the Respondent twice (i.e. on 4 August and on 21 August) as well as it sent several reminders in order to solve the controversy amicably, however to no avail.

11. Consequently, the Claimant requested to be awarded interest at a rate of 10% p.a. as provided for in clause 2.2 of the transfer agreement.

12. The requests for relief of the Claimant, were, inter alia, the following:

a. to order the Respondent to pay the total outstanding amount of EUR 700,000, plus interest at a rate of 10% p.a. as from 23 July 2020 and until the date of effective payment;

b. to impose a sanction on the Respondent in accordance with art. 12bis of the FIFA RSTP;

c. to impose a temporary transfer ban on the Respondent in accordance with art. 24bis of the FIFA RSTP.

b. Position of the Respondent

13. In its reply, the Respondent acknowledged the debt and underlined that its financial situation was not made easier with the COVID-19 pandemic.

14. In this regard, the Respondent mentioned other cases before the FIFA Players’ Status Committee in which the club was condemned to pay relevant amounts.

15. Additionally, the Respondent stated that the parties were in negotiations to amicably settle the case at hand and requested a “reasonable time before deciding on the matter to settle the issue with the Claimant and to with his obligations”.

III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

a. Competence and applicable legal framework

16. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 23 September 2020 and submitted for decision on 9 February 2021. Taking into account the wording of art. 21 of the January 2021 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.

17. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (edition February 2021), the Players’ Status Committee is competent to deal with the matter at stake, which concerns an international dispute between clubs belonging to different associations, i.e. a Serbian club and a Saudi club.

18. Subsequently, the Single Judged 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 2 of the Regulations on the Status and Transfer of Player (edition February 2021) and considering that the present claim was lodged on 23 September 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

19. The Single Judged 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. Likewise, the Single Judged stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

20. In this respect, the Single Judged also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

21. The competence of the Single Judged and the applicable regulations having been established, the Single Judged entered into the merits of the dispute. In this respect, the Single Judged started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judged 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.

i. Main legal discussion and considerations

22. The foregoing having been established, the Single Judge moved to the substance of the matter, and took note of the fact that the Respondent acknowledged its debt towards the Claimant and referred to the COVID-19 pandemic in order to justify the lack of payment.

23. Having said this, the Single Judge highlighted that FIFA issued a set of guidelines, the COVID-19 Guidelines, which aim at providing appropriate guidance and recommendations to member associations and their stakeholders, to both mitigate the consequences of disruptions caused by COVID-19 and ensure that any response is harmonised in the common interest. Moreover, on 11 June 2020, FIFA has issued an additional document, referred to as FIFA COVID-19 FAQ, which provides clarifications on the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.

24. In this context, the Single Judge underlined that the Respondent failed to meet its burden of proof in accordance with the aforementioned art. 12 par. 3 of the Procedural Rules insofar as the FIFA COVID FAQ, in its question no. 1, establishes that the Bureau of the FIFA Council did not determine that the COVID-19 outbreak was a force majeure situation in any specific country or territory, or that any specific employment or transfer agreement was impacted by the concept of force majeure; rather, it provides that whether or not a force majeure situation (or its equivalent) exists in the country or territory is a matter of law and fact, which must be addressed on a case-by-case basis vis-à-vis the relevant laws that are applicable to any specific employment or transfer agreement.

25. Additionally, the Single Judge wished to outline that he could not uphold the argumentation of the Respondent since it did not file together with its reply any documentation pertaining to the question of the COVID-19 pandemic. To this end, the Single Judge was firm to determine that clubs are required to comply with their financial obligations.

26. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the Claimant’s remuneration in the amount of EUR 700,000. Consequently, the Single decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay said amount to the Claimant.

27. In continuation, the Single Judge turned his attention to the content of clause 2.2 of the contract and noted that the parties freely established that, in case of default by the Respondent, “the relevant sum payable shall be automatically irrevocably accrued with default interest payable at first demand at a rate of 10% p.a.”

28. In this regard, the Single Judge recalled the constant practice of the Players’ Status Committee and observed that said interest was fair and proportionate. Furthermore, taking into account the contents of the transfer agreement as well as the Claimant’s petition, the Single Judge decided to award such interests as from 23 August 2020.

29. Therefore, the Single Judge concluded that the claim shall be partially accepted.

ii. Article 12bis of the Regulations

30. In continuation, taking into account the applicable Regulations, 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.

31. The Single Judge further established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. On account of the above and bearing in mind that the club is a repeat offender, the Single Judge decided to impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations.

32. Furthermore, considering the amount due of EUR 700,000, the Single Judge regarded a fine amounting to CHF 45,000 as appropriate and hence decided to impose said fine on the Respondent.

33. 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.

iii. Compliance with monetary decisions

34. Finally, also taking into account the applicable Regulations, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with h 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.

35. In this regard, the Single Judge highlighted 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.

36. 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, communicates the relevant bank details to the Respondent, provided that the decision is final and binding, 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.

37. The Single Judge recalled that the above-mentioned bans 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.

38. Finally, the Single Judge concluded its deliberations by rejecting any other requests for relief made by any of the parties.

d. Costs

39. Lastly, the Single Judge referred to article 18 par. a lit. 1) of the Procedural Rules, according to which no costs shall be levied by the parties for claims lodged between 10 June 2020 and 31 December 2020 (both inclusive). Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

40. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant, FK Crvena Zvezda, is partially accepted.

2. The Respondent, Al Ahli Saudi FC, has to pay to the Claimant, the following amount:

- EUR 700,000 as outstanding amount plus 10% interest p.a. as from 23 August 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. 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.

5. 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).

6. 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.

7. The Respondent is ordered to pay a fine in the amount of CHF 45,000. The fine is to be paid within 30 days of notification of the present decision to FIFA to the following bank account with reference to case nr. 20-01375:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

8. In the event that the fine indicated in point 7 above is not paid by the Respondent within the stated time limit, the present matter shall be submitted to the FIFA Disciplinary Committee for consideration and a formal decision.

9. This decision is rendered without costs.

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:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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