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 Sekou Junior Sanogo
Stefano La Porta (Italy), Single Judge of the PSC
BSC Young Boys, Switzerland
Al Ittihad, Saudi Arabia
Represented by Mr Jan Kleiner & Ms Vanessa Plavjanikova
I. FACTS OF THE CASE
1. On 20 December 2018, the Swiss club, BSC Young Boys (hereinafter: the Claimant) and the Saudi Arabian club, Al Ittihad (hereinafter: the Respondent) concluded an agreement (hereinafter: transfer agreement) regarding the permanent transfer of the player Sekou Junior Sanogo (hereinafter: player) from the Claimant to the Respondent.
2. According to the transfer agreement, the Respondent undertook to pay the Claimant the amount of EUR 6,500,000 as transfer fee in instalments as follows:
- EUR 1,625,000 “within 10 days of valid registration”;
- EUR 1,625,000 until 30 June 2019;
- EUR 1,625,000 until 20 January 2020;
- EUR 1,625,000 until 30 June 2020.
3. Art. 2.2. of the transfer agreement reads as follows: “[…] [BSC Young Boys] shall be responsible to pay any third club entitled to receive any amount in connection with solidarity contribution that arises from this agreement. However, the Parties agree that whenever [BSC Young Boys] makes a payment of any amount of solidarity contribution to a third club, Al Ittihad shall reimburse 50% of the amount paid to [BSC Young Boys] within 15 days after receipt of a duly signed invoice from [BSC Young Boys]. […]”
4. On 10 August 2020, the Claimant put the Respondent in default and requested payment of EUR 3,250,000 as well as EUR 100,707.56 within 10 days.
5. On 18 September 2020, the Claimant lodged a claim against the Respondent in front of FIFA and requested payment of the following monies:
- - EUR 3,250,000 corresponding to the 3rd and 4th instalment of the transfer fee;
- - EUR 100,707.56 corresponding to the Respondent’s share of the solidarity contribution.
6. In its claim, BSC Young Boys held that it received the first instalment in a timely manner, but that it already had to lodge a claim regarding the second instalment before receiving said amount with a delay.
7. Furthermore, the Claimant held that the 3rd and 4th instalment of the transfer fee remains outstanding up to date.
8. Moreover, referring to art. 2.2 of the transfer agreement, the Claimant maintained being entitled to reimbursement for solidarity contribution payments invoiced as follows:
9. In this regard, the Claimant held having paid 100% of the solidarity contribution to FC Thun (EUR 31,520.55) and 50% of the solidarity contribution to the other clubs. According to the Claimant, it will remit the residual 50% solidarity contribution as soon as it receives the Respondent’s share.
10. According to the Claimant, it will claim the residual amounts due under art. 2.2. of the transfer agreement at a later stage, if needed.
11. In its reply to the claim, the Respondent rejected the claim and held that the PSC “shall adjust the amounts to be paid” resulting from the transfer agreement.
12. The Respondent acknowledged “that a certain financial compensation based on the contract is due”, but held if faces “financial difficulties” caused by the current COVID-19 outbreak.
13. In this regard, the Claimant referred to Swiss law and the concept of clausula rebus sic stantibus, which allows to unilaterally change contractual terms if there was a subsequent change in circumstances, a serious disruption of contractual balance as well as a lack of predictability.
14. On account of the above, and referring to the COVID-19 outbreak and the financial loss caused, the Respondent requested to “adjust” the amounts payable as transfer fee to the Claimant.
15. Regarding the claimed share of the solidarity contribution, the Respondent referred to the wording of art. 2.2. of the transfer agreement and argued that it only had to reimburse the Claimant for payments actually remitted, not just invoiced. In this regard, the Respondent referred to the Claimant’s statement that it paid only 50% of the amounts due to Africa Sports and OSA Olympic Sport Abobo. Therefore, the Respondent maintained that the invoice is not justified.
16. Additionally, the Respondent held that the requirements to apply art. 12bis of the Regulations on the Status and Transfer of Players are not fulfilled as there is a prima facie reason to refuse payment due to the adaption of the agreement applying the principle of clausula rebus sic stantibus.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE
1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge) analysed whether he was competent to deal with the present matter. In this respect, he took note that the present matter was submitted to FIFA on 18 September 2020. 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 referred to art. 3 paras 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 23 paras 1 and 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition January 2021) he is competent to deal with the matter at stake, which concerns a contractual dispute between clubs affiliated to different associations.
3. 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 January 2021), and considering that the present claim was lodged on 18 September 2020, the August 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.
4. 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.
5. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement on 20 December 2018 regarding the transfer of the player from the Claimant to the Respondent, according to which the Respondent undertook to pay the Claimant the total amount of EUR 6,500,000 in four instalments.
6. The Single Judge further took note of the fact that the parties agreed in clause 2.2 of the transfer agreement that the Claimant would be entitled to a reimbursement of 50% of the solidarity contribution remitted to third parties.
7. Moreover, the Single judge took notice of the Claimant’s claim lodged against the Respondent in front of FIFA, maintaining that the Respondent owed it the amounts of EUR 3,250,000, corresponding to the third and fourth instalment of the transfer agreement, as well as EUR 100,707.56 resulting from clause 2.2. of the transfer agreement in connection with the reimbursement of solidarity contribution.
8. In this context, the Single Judge took particular note of the fact that, on 10 August 2020, the Claimant put the Respondent in default of payment of EUR 3,250,000 and EUR 100,707.56, setting a 10 days’ time limit in order to remedy the default.
9. Subsequently, the Single Judge took into account that the Respondent, in reply to the claim, did not dispute the outstanding transfer fee instalments, but argued that due to the Covid-19 pandemic it could not make the due payments to the Claimant.
10. Having said that, the Chamber wished to refer to the fact that, in light of the worldwide COVID-19 outbreak, 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 clarification about the most relevant questions in connection with the regulatory consequences of the COVID-19 outbreak and identifies solutions for new regulatory matters.
11. For this dispute. it is important to note that based on the COVID-19 Guidelines, as well as the FIFA FIFA COVID-19 FAQ, the COVID-19 outbreak is not a force majeure situation in any specific country or territory. What is more, the COVID-19 Guidelines do not exempt an employer from paying its contractual obligations.
12. In this context, the Single Judge considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.
13. 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.
14. The Single Judge continued to analyse the second part of the claim related to the reimbursement of the solidarity contribution. In this regard, the Single Judge examined the content of the contract and established that art. 2.2. of the transfer agreement entitles the Respondent for the reimbursement of 50% of the solidarity contribution remitted to third parties. Therefore, considering the documentation on file, it appears that the Claimant made the following payments:
- EUR 31,520.55 to FC Thun (100% of the solidarity contribution);
- EUR 45,326.25 to Africa Sports (50% of the solidarity contribution);
- EUR 39,601.03 to OSA Olympic Sport Abobo (50% of the solidarity contribution).
15. In accordance with the wording of the relevant clause, the Single Judge decided to order the Respondent to reimburse 50% of the payments remitted in this regard, which amounts to EUR 58,233.90. The Single Judge rejected further claims of the Claimant in this regard, while pointing out that such amounts could be claimed as soon as effectively remitted the payments to the entitled clubs.
16. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to pay the Claimant the total amounts of EUR 3,250,000 corresponding to third and fourth instalment of the transfer fee as well as the EUR 58,233.90 in accordance with clause 2.2. of the transfer agreement.
17. 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 amounts of EUR 3,250,000 and EUR 58,233.90.
18. Moreover, the Single Judge decided that any further request filed by the Claimant is rejected.
19. In continuation, taking into account the consideration under number II./13. above, 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.
20. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent duly replied to the claim of the Claimant 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.
21. 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.
22. What is more, taking into account the consideration under number II./3. 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.
23. 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.
24. 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.
25. Moreover, 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.
26. Finally, the Single Judge referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, 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.
III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE
1. The claim of the Claimant, BSC Young Boys, is partially accepted.
2. The Respondent, Al Ittihad, has to pay to the Claimant the amounts of EUR 3,250,000 and EUR 58,233.90.
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 email@example.com, 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.
8. The decision is rendered free of 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).
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