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 6 October 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 6 October 2020,

regarding a dispute concerning the transfer of the player Dame Diop

BY:

Geoff Thompson (England), Single Judge of the PSC

CLAIMANT:

FC Banik Ostrava, Czech Republic

Represented by Mr Jan Schweele

RESPONDENT:

Club Hatayspor, Turkey

I. FACTS OF THE CASE

1. On 28 April 2017, the Czech club, FC Banik Ostrava (hereinafter: the Claimant) and the Turkish club, Hatayspor (hereinafter: the Respondent) entered into an agreement for the transfer of the player Dame Diop from the Claimant to the Respondent (hereinafter: the transfer agreement).

2. In accordance with clause 1.1 of the transfer agreement, the Respondent undertook to pay to the Claimant a fixed transfer fee in the amount of EUR 60,000 against issuance of an invoice by 21 February 2020.

3. Clause 1.5 of the transfer agreement states that “in case of delay in payment of the agreed payment, fees and compensations, [the Respondent] is obliged to pay to [the Claimant] a contractual fine amounting to 0.5% of the unpaid amount for each day of delay”.

4. On 17 January 2020, the Claimant sent an invoice to the Respondent regarding the payment of EUR 60,000 as provided in clause 1.1. of the transfer agreement.

5. On 23 June 2020, the Claimant put the Respondent in default of payment, granting it 10 days to fulfil its financial obligations towards the Claimant in the amount of EUR 110,809.00, corresponding to the sum of the fixed transfer fee, i.e. EUR 60,000, and the penalty contained in clause 1.5 of the transfer agreement; however, to no avail.

6. On 3 July 2020, 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 110,809 corresponding to the sum of the fixed transfer fee, i.e. EUR 60,000, and the penalty contained in clause 1.5 of the transfer agreement in the amount of EUR 50,809.

7. The Claimant further asks to be awarded interest of 5% p.a. as from the due date until the date of effective payment.

8. In spite of having been invited to do so, the Respondent has not replied to the claim.

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

9. First of all, the Single Judge of the Players’ 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 3 July 2020. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition June 2020; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

10. 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. 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition October 2020) he is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations, i.e. a Czech club and a Turkish club.

11. 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 October 2020), and considering that the present claim was lodged on 3 July 2020, the June 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

12. 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.

13. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement, in accordance with which the Claimant was entitled, inter alia, to receive from the Respondent EUR 60,000 against issuance of an invoice by 21 February 2020. The Single Judge further took note of the contents of clause 1.5 of the transfer agreement.

14. 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 110,809.00, corresponding to the sum of the fixed transfer fee, i.e. EUR 60,000, and the penalty contained in clause 1.5 of the transfer agreement.

15. In this context, the Single Judge took particular note of the fact that, on 23 June 2020, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit of 10 days in order to remedy the default.

16. 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).

17. Subsequently, the Single Judge 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 Single Judge considered that the Respondent renounced its right to defence and thus accepted the allegations of the Claimant.

18. Furthermore, as a consequence of the aforementioned consideration, the Single Judge decided that in accordance with art. 9 par. 3 of the Procedural Rules he 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.

19. Having said this, the Single Judge acknowledged that, in accordance with the transfer agreement contract provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 60,000 against issuance of an invoice by 21 February 2020. What is more, the Single Judge noted that the Claimant duly issued said invoice on 17 January 2020.

20. Taking into account the documentation presented by the Claimant in support of his petition, the Single Judge concluded that the Claimant had substantiated his claim pertaining to overdue payables with sufficient documentary evidence.

21. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the Claimant’s remuneration in the total amount of EUR 60,000, corresponding the amount agreed under the transfer agreement.

22. 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.

23. 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 EUR 60,000.

24. In continuation, the Single Judge turned to the contents of clause 1.5 of the transfer agreement, and concluded that the penalty therein provided in fact corresponds to hidden interests. In this respect, the Single Judge highlighted those interests of 0.5% per day of delay amounts to a yearly rate of 182.5% per year, which is clearly excessive.

25. On account of the foregoing, taking into account the constant practice of the Dispute Resolution Chamber, the Single Judge decided to reduce said interest to 18% p.a., an amount the Single Judge found to be 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 18 January 2020, i.e. one day after the relevant invoice was issued by the Claimant.

26. 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.

27. 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.

28. In this respect, the Single Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to a more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

29. Furthermore, taking into account the consideration under number 21 above, 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.

30. 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.

31. 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.

32. 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

33. 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 SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, FC Banik Ostrava, is partially accepted.

2. The Respondent, Club Hatayspor, has to pay to the Claimant, the following amount:

- EUR 60,000 as outstanding remuneration plus 18% interest p.a. as from 18 January 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. A warning is imposed on the Respondent.

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 amounts are 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 amounts are paid.

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

In the event that the payable amounts as per in this decision are 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:

Fédération Internationale de Football Association

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

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