F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – (2018-2019) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 27 November 2018

Decision of the Bureau of the Players’ Status Committee

passed by way of circulars on 27 November 2018,

in the following composition:

Raymond Hack (South Africa), Chairman

Geoff Thompson (England), member

Johan van Gaalen (South Africa), member

on the claim presented by the club,

Club A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding a contractual dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 6 July 2017, the Club A (hereinafter: the Claimant) and the Club C (hereinafter: the Respondent) signed an agreement regarding the definitive transfer of the player, Player E (hereinafter: the player) from the Claimant to the Respondent (hereinafter: the transfer agreement).

2. Pursuant to the transfer agreement, the Respondent undertook to pay the Claimant the sum of EUR 5,000,000 (hereinafter: the transfer fee) in eight instalments of EUR 625,000 each, payable on the following dates, respectively: 31 August 2017, 31 January 2018, 31 May 2018, 28 September 2018, 31 December 2018, 30 April 2019, 30 June 2019 and 30 September 2019.

3. By correspondence dated 2 August 2018, the Claimant put the Respondent in default of payment of EUR 625,000, corresponding to the third instalment of the transfer fee payable on 31 May 2018, setting a 10 days’ time limit in order to remedy the default.

4. On 14 September 2018, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to it overdue payables in the amount of EUR 1,250,000, corresponding to the third and fourth instalment of the transfer fee which, in accordance with the transfer agreement, were payable on 31 May 2018 and 28 September 2018 respectively.

5. The Claimant further asked to be awarded interest of 5% p.a. on the amount of EUR 625,000 as from 31 May 2018 for the third instalment and on the amount of EUR 625,000 from 28 September 2018 for the fourth instalment.

6. In its reply to the claim, the Respondent acknowledged the non-payment of the amount requested by the Claimant and stated that it is currently facing financial hardship. According the Respondent, it “will put into practise the new solutions and projects in order to cease any outstanding debts of the [Respondent]”.

7. Moreover, within its reply, the Respondent offered to pay the Claimant the overdue third instalment of the transfer agreement on 12 December 2018 and the overdue fourth instalment of the transfer agreement on 19 December 2018.

8. On 9 November 2018, the FIFA administration provided the Claimant with a copy of the Respondent’s reply and informed the parties that the investigation- phase of the relevant proceedings was closed. Moreover, the FIFA administration also informed the parties that it would proceed to submit the present matter to the Bureau of the Players’ Status Committee unless it received, within the following 10 days, confirmation from both parties that the dispute between them was settled.

9. On 19 November 2018, the Respondent informed FIFA that, on 16 November 2018, it reiterated to the Claimant the same payment offer contained in its reply to the claim.

10. No further correspondence was received from the parties.

II. Considerations of the Bureau of the Player’s Status Committee

1. First of all, the Bureau of the Players’ Status Committee (hereinafter: the Bureau) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 14 September 2018. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Bureau referred to art. 3 par. 1 and par. 2 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 2018), it is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations.

3. Furthermore, the Bureau analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2018), and considering that the present claim was lodged on 14 September 2018, the 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Bureau and the applicable regulations having been established, the Bureau entered into the substance of the matter. In this respect, it started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Bureau emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Having said this, the Bureau acknowledged that the Claimant and the Respondent signed a transfer agreement, in accordance with which the Claimant was entitled to receive from the Respondent the total amount of EUR 5,000,000 in eight equal instalments of EUR 625,000 on 31 August 2017, 31 January 2018, 31 May 2018, 28 September 2018, 31 December 2018, 30 April 2019, 30 June 2019 and 30 September 2019, respectively.

6. The Bureau further acknowledged that 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 1,250,000, corresponding to the third and the fourth instalment under the transfer agreement, which were payable on 31 May 2018 and 28 September 2018 respectively.

7. In this context, the Bureau took particular note of the fact that, on 2 August 2018, the Claimant put the Respondent in default of payment of EUR 625,000, corresponding to the third instalment of the transfer fee payable on 31 May 2018, setting a 10 days’ time limit in order to remedy the default.

8. Consequently, the Bureau 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 obligations.

9. Subsequently, the Bureau took into account that the Respondent, for its part, acknowledged the non-payment of the amount requested by the Claimant and stated that it is currently facing financial hardship.

10. In this regard, the Bureau 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.

11. Consequently, the Bureau decided to reject the argumentation put forward by the Respondent in its defence.

12. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit the total amount of EUR 1,250,000, payable to the Claimant.

13. In addition, bearing in mind the considerations under numbers II./7. and II./8. above, the Bureau established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

14. Consequently, the Bureau decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of EUR 1,250,000.

15. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Bureau decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 1,250,000 as follows:

a) on the amount of EUR 625,000 as from 1 June 2018 until the date of effective payment;

b) on the amount of EUR 625,000 as from 29 September 2018 until the date of effective payment.

16. In this context, the Bureau highlighted that, in light of the prerequisites set out in art. 12bis par. 3 of the Regulations, the outstanding amount of EUR 625,000, in connection with the Claimant’s claim relating to the fourth instalment of the transfer fee due on 28 September 2018, is not considered to fall within the scope of art. 12bis of the Regulations.

17. In continuation, taking into account the consideration under number II./13. above, the Bureau 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.

18. Subsequently, the Bureau 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 more severe penalty.

19. Having said that, to start with, the Bureau took note that the Respondent is involved in one other dispute in connection with overdue payables (case ref. nr. XXX) which, in addition to the present matter, has been submitted to this Chamber today and in which sanctions have been imposed on the Respondent.

20. Furthermore, the Bureau highlighted that, on 2 June 2016 (case ref. nr XXX), 13 September 2016 (case ref. nr. XXX), 20 December 2017 (XXX), 23 March 2018 (case ref. nr. XXX) and 9 May 2018 (case ref. nr. XXX), the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis and without providing valid reasons for non-payment, as a result of which diverse sanctions had been imposed on the Respondent by the Single Judge of the Players’ Status Committee and its Bureau.

21. In particular, the Bureau noted that on the basis of the aforementioned circumstances, on 9 May 2018, the Bureau decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for one entire registration period, the execution of which is suspended during a probation period of one year following the notification of the relevant decision, i.e. as of 15 May 2018. According to said decision, if the Respondent would commit another infringement during the probationary period, the suspension is automatically revoked and the registration ban executed.

22. With the above in mind, the Bureau highlighted that, in the present matter, the Respondent is found to have delayed a due payment for more than 30 days without a prima facie contractual basis for the sixth time. What is more, the Bureau wished to emphasise that the facts giving rise to the present dispute, i.e. the non-payment of the amount of EUR 625,000 due on 31 May 2018, occurred after the entry into force of the aforementioned one-year probationary period faced by the Respondent as of 15 May 2018.

23. Therefore, and bearing in mind the aforementioned considerations as well as referring to art. 12bis par. 8 of the Regulations, the Bureau decided that the ban of one registration period, imposed in case XXX, shall become effective as of the notification of the present decision insofar as the Respondent is considered to have committed another infringement during the probationary period and that such infringement occurred after the entry into force of the aforesaid probationary period (cf. point II.22. above).

24. Furthermore, and alluding to art. 12bis par. 4 lit. d) in conjunction with art. 12bis par. 7 and 8 of the Regulations, the Bureau decided that the Respondent shall be banned from registering any new players, either nationally or internationally, for two entire registration periods. The execution of this registration ban is suspended during a probation period of twelve months following the notification of the present decision. If the Respondent commits another infringement during the twelve-months probationary period, the suspension is automatically revoked and the registration ban executed.

25. Finally, the Bureau referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in proceedings before the Players’ Status Committee, costs in the maximum amount of CHF 25,000 are levied and which states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party.

26. Taking into account that the responsibility of the failure to comply with the payment of the amounts as agreed in the transfer agreement can entirely be attributed to the Respondent and that the Claimant has been the successful party, the Bureau concluded that the Respondent has to bear the costs of the current proceedings before FIFA. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Bureau held that the amount to be taken into consideration in the present proceedings is EUR 1,250,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

27. Considering the particular circumstances of the present matter, the Bureau determined the costs of the current proceedings in the amount of CHF 20,000, which has to be paid by the Respondent in order to cover the costs of the present proceedings.

28. The Bureau concluded its deliberations by rejecting any further claim of the Claimant.

III. Decision of the Bureau of the Players’ Status Committee

1. The claim of the Claimant, Club A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, overdue payables in the amount of EUR 1,250,000, plus 5% interest p.a. as follows:

a) on the amount of EUR 625,000 as from 1 June 2018 until the date of effective payment;

b) on the amount of EUR 625,000 as from 29 September 2018 until the date of effective payment.

3. If the amount plus interest under point III.2 is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claim lodged by the Claimant is rejected.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

5.1 The amount of CHF 5,000 has to be paid to the Claimant.

5.2 The amount of CHF 15,000 has to be paid to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points III.2. and III.5.1 are to be made and to notify the Bureau of the Players’ Status Committee of every payment received.

7. The suspension of the ban, imposed on the Respondent in case XXX, is lifted and, thus, the Respondent shall be banned from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision.

8. The Respondent shall be additionally banned from registering any new players, either nationally or internationally, for two registration periods. The execution of this registration ban is suspended during a probation period of twelve months following the notification of the present decision. If the Respondent commits another infringement during the probationary period, the suspension is automatically revoked and the registration ban executed.

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Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Bureau of the

Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives