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 12 January 2021

Decision of the

Single Judge of the Players' Status Committee

Passed on 12 January 2021,

regarding a dispute concerning the transfer of the player Giovanni – Guy Yann Sio

COMPOSITION:

Stefano La Porta (Italy),

Single Judge of the Players’ Status Committee

CLAIMANT:

Montpelier Herault SC, France

represented by Mr Luca Tettamanti

RESPONDENT:

Gençlerbirligi Spor Kulübü Derneği, Turkey

I. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. On 9 July 2019, the Claimant, the French club, Montpelier Herault SC, and the respondent, the Turkish club, Gençlerbirligi Spor Kulübü Dernegi, concluded a transfer agreement for the permanent transfer of the player, Mr Giovanni - Guy Yann Sio (hereinafter: the agreement).

2. According to clause 2 of the agreement, the parties agreed upon a transfer fee of EUR 200,000, payable as follows:

“2. GUARANTEED COMPENSATION

Subject to fulfilment of the conditions set out in clause 3 (the "Conditions") in consideration of the Permanent Transfer of the Player's registration, Genylerbirligi shall pay to Montpellier, subject to and in accordance with the terms and conditions hereof, the total sum of EUR 200.000.- (Two Hundred Thousand Euros) for the Player's federative and economic rights, as follows:

i. 100.000.-Euro (One Hundred Thousand Euros) on July 2019 and

ii. 100.000.-Euro (One Hundred Thousand Euros) on July 2020.”

3. Moreover, the parties agreed upon further conditional compensation pursuant to clause 3 of the agreement. Inter alia, EUR 100,000 if the player started in at least 20 official league games during the season 2019/2020 (hereinafter: the Contingent Payment) as follows:

“3. CONDITIONAL COMPENSATION

a. In case Player has started in at least 20 official league games with the starting 11 during the 2019/2020 season, the conditional transfer fee of EUR 100.000.- (One Hundred Thousand Euros) shall be paid to Montpellier within 5 days from the actualization [sic] of the condition thereof.”

4. On 9 March 2020, the condition for the payment of the aforementioned payment was apparently fulfilled.

5. On 17 September 2020, the Claimant put the Respondent in default to pay within 10 days the total outstanding amounts of EUR 190,000 overdue since July 2020.

6. On 19 October 2020, the Claimant lodged a claim against the Respondent for outstanding payments.

7. In particular, the Claimant held that according to “article 12bis of the RSTP imposes clubs to pay other clubs amounts stipulated into transfer agreements and any club found to have delayed a due payment for more than 30 days without prima facie contractual basis and after a notice granting 10 days to comply, may be also sanctioned”.

8. Furthermore, the Claimant argued that in accordance with clause 2 and 3 of the Agreement, there was clearly agreed the payment of the transfer fee (EUR 200,000) of the player, plus some conditional payments therein established.

9. According to the Claimant, the Respondent only paid the first instalment in the amount of USD 100,000; but it failed to make the rest of the payments due on the Agreement.

10. Furthermore, the Claimant held that the respondent never replied to any of its correspondence and “therefore did not raise any valid argument to justify its lack of payment” and “Thus, it is irrefutable that more than 30 days have already elapsed without a prima facie contractual basis and the Respondent shall pay the Claimant the amount of EUR 190,000 (i.e. EUR 200,000 net of solidarity contribution) according to clauses 2 and 3 of the Transfer Agreement”.

11. In light of the above, the Claimant requested (i) the aforementioned overdue amounts, i.e. EUR 190,000 plus (ii) interest at 5% per year; and, also, that (iii) sporting sanctions are imposed to the respondent according to art. 12 bis RSTP. Finally, the respondent (iv) should cover and/or reimburse any procedural cost.

12. In reply to the claim of the Claimant, the respondent admitted to enter into the transfer agreement of the player.

13. However, the respondent highlighted that “was not able to deliver the payment of the second instalment within the designated deadline because of the financial troubles it has been going though” because, for example, ¨not collecting its receivables from third parties such as TFF, the broadcaster (beinSports) and other clubs resulted in a great financial restraint for the Respondent¨.

14. Furthermore, the Respondent claimed that ¨the novel corona virus (covid 19) pandemic has spread throughout the globe since November 2019¨ has affected football ¨on a vast scale¨. Indeed, ¨in Turkey, upon the suspension of the leagues¨ the clubs have not received the revenues ¨obtained from matches, sale of products and other activities, were brought to an extreme position by not receiving its payments from the broadcaster and TFF¨.

15. This pandemic situation was defined by FIFA as a ¨force majeure under the document Covid-19 Football Regulatory Issues published on 7 April 2020, have resulted in the Respondent´s non-compliance with its obligations unavoidably¨.

16. Therefore, according to art. 119 of the Swiss Civil Code of Obligations ¨an obligations is deemed extinguished where its performance is made impossible by circumstances not attributable to the obligor¨ combined under the principles recognized by the clausula rebus sic stantibus, the theory of imprevision and the good faith ¨made the payment of the requested amount impossible¨.

17. In light of the above, the Respondent considered that the claim should be rejected and the claimant should bear the proceeding fees.

II. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the PSC (hereinafter also referred to as the Single Judge) analysed whether it 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 Single Judge of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised 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 Single Judge of the PSC is competent to deal with matters which concern disputes between clubs belonging to different associations.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date of the claim, the August 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Single Judge of the PSC 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 Single Judge of the PSC 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. First of all, the Single Judge noted that, on 9 July 2019, the parties concluded a transfer agreement for the permanent transfer of the player, Mr Giovanni - Guy Yann Sio for a total fee of EUR 200,000, payable as follows:

- 100.000.-Euro on July 2019;

- 100.000.-Euro on July 2020.

6. The Single Judge also observed that the aforementioned contract contained a conditional compensation “ In case Player has started in at least 20 official league games with the starting 11 during the 2019/2020 season” for an amount of EUR 100,000, payable “within 5 days from the actualization [sic] of the condition thereof.”

7. Subsequently, the Single Judge noted that Claimant lodged a claim before FIFA for outstanding payments in the total amount of EUR 190,000, noting that the Respondent only paid the first instalment in the amount of EUR 100,000, which was due in July 2019.

8. On the other hand, the Single Judge examined the position of the Respondent, according to which it “was not able to deliver the payment of the second instalment within the designated deadline because of the financial troubles it has been going though” because, for example, ¨not collecting its receivables from third parties such as TFF, the broadcaster (beinSports) and other clubs resulted in a great financial restraint for the Respondent¨

9. Considering the reply of the Respondent, the Single Judge understood that, de facto, it admitted its debt towards the Respondent. The Single Judge also noted that the Respondent did not contest that the conditional payment in the amount of EUR 100,000 was due.

10. At this stage, and considering that the Claimant acknowledged having been paid in the amount of EUR 100,000 for the final instalment, the Single Judge understood that, in principle, the total debt of the Respondent would correspond to EUR 200,000 (i.e. EUR 100,000, due in July 2020, and EUR 100,000 corresponding to the conditional payment).

11. Yet, in this respect, the Single Judge noted that the Claimant limited its claim to EUR 190,000 net, after deducting the applicable solidarity contribution.

12. Furthermore, returning to the Respondent’s allegation, according to which it faced financial difficulties to settle the due amounts.

13. In this respect, however, the Single Judge of the PSC considered that, in line with its well-established jurisprudence, a club’s financial difficulties cannot be considered a valid justification for non-compliance with its essential contractual obligations deriving from the signature of a binding agreement. Consequently, the Single Judge of the PSC decided that this argumentation of the Respondent cannot be followed on this point.

14. In view of the above, Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge of the PSC established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 190,000, as agreed in the contract concluded between the parties

15. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Single Judge of the PSC decided to award 5% interest p.a. over said amount as from the due dates.

16. In continuation, the Single Judge of the PSC referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Dispute Resolution Chamber relating to disputes regarding solidarity mechanism costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings.

17. In this respect, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, ) for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered.

18. In continuation, taking into account the previous considerations, the Single Judge of the PSC 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.

19. The Single Judge of the PSC 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 Single Judge of the PSC highlighted that the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis. In view of the above, and considering that the Respondent was already found in breach of said provision in a previous matter, the Single Judge of the PSC decided to impose a Reprimand (12 bis par. 4 b) of the Regulations on the Respondent.

20. Moreover, the Single Judge of the PSC 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 a more severe penalty.

21. Furthermore, taking into account the previous considerations, the Single Judge of the PSC 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.

22. In this regard, the Single Judge of the PSC 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.

23. Therefore, bearing in mind the above, the Single Judge of the PSC 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.

24. Finally, the Single Judge of the PSC 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.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Montpelier Herault SC, is accepted.

2. The Respondent, Gençlerbirligi Spor Kulübü Derneği, has to pay to the Claimant, the amount of EUR 190,000 as outstanding remuneration plus interest of 5% p.a. as follows:

- On the amount of EUR 95,000, as from 15 March 2020 until the date of effective payment;

- On the amount of EUR 95,000, as from 1 August 2020 until the date of effective payment.

3. A reprimand is imposed on the Respondent.

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.

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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