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 3 May 2019

Decision of the Single Judge

of the Players’ Status Committee

passed on 3 May 2019,

by

Mr Johan van Gaalen (South Africa)

Single Judge of the Players’ Status Committee,

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 August 2018, the Club of Country B, Club A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) signed an agreement regarding the transfer of the player, Player E (hereinafter: the player) from the Claimant to the Respondent (hereinafter: the agreement).

2. Pursuant to the agreement, the Respondent undertook to pay the Claimant the amount of EUR 300,000 (hereinafter: the transfer fee) in three instalments, as follows:

- EUR 120,000, payable ”within three days from the signature of the present agreement”, i.e. 9 August 2018;

- EUR 130,000, payable “no later than 30th November 2018”;

- EUR 50,000, payable “no later than 30th August 2019, in case Club C is not relegated from the League F to the lower Division at the end pf the sport season 2018/2019”.

3. By correspondence dated 5 February 2019, the Claimant put the Respondent in default of payment of EUR 130,000, corresponding to the second instalment of the transfer fee. By means of the same correspondence, the Claimant set a 10 days’ time limit in order for the Respondent to remedy the default.

4. On 22 February 2019, 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 130,000, corresponding to the second instalment due as per the agreement.

5. The Claimant further asked to be awarded “interests from 30th November 2018 since the day of the effective payment” and that the Respondent be ordered to pay legal and procedural costs.

6. 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 Player’s Status Committee

1. 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 22 February 2019. 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 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 2018) he is competent to deal with the present matter, which concerns a dispute between two 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 2018) and considering that the present claim was lodged on 22 February 2019, the 2018 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 took note that the Claimant and the Respondent signed a transfer agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of EUR 300,000, payable in three instalments, as follows:

- EUR 120,000, payable on 9 August 2018 ;

- EUR 130,000, payable “no later than 30th November 2018”;

- EUR 50,000, payable “no later than 30th August 2019, in case Club C is not relegated from the League F to the lower Division at the end pf the sport season 2018/2019”.

6. The Single Judge 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 130,000, corresponding to the second instalment of the transfer fee, plus “interests from 30th November 2018 since the day of the effective payment”.

7. In this context, the Single Judge took particular note of the fact that, on 5 February 2019, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 10 days’ time limit in order to remedy the default.

8. 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 obligations.

9. 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.

10. Furthermore, as a consequence of the aforementioned consideration, the Single Judge concurred 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.

11. Having stated the above, the Single Judge recalled that, in accordance with the agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the total amount of EUR 300,000, of which EUR 130,000 payable on 30 November 2018, remained outstanding.

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

13. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit the total amount of EUR 130,000, corresponding to the second instalment of the transfer fee, payable to the Claimant.

14. 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.

15. 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 overdue payables in the total amount of EUR 130,000.

16. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Single Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. on the amount of EUR 130,000 as from 1 December 2018 until the date of effective payment.

17. In continuation, taking into account the consideration under number II./14 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.

18. The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. In this context, the Single Judge highlighted that, on 7 March 2019, 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 the Respondent having responded to the relevant claim, as a result of which a fine had been imposed on the Respondent by the Single Judge of the Players’ Status Committee.

19. Moreover, the Single Judge 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.

20. Bearing in mind that the Respondent did not reply to the claim of the Claimant as well as the considerations under numbers II./18. and II./19. above, the Single Judge decided to impose a more severe fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Furthermore, taking into consideration the amount due of EUR 130,000 as well as the aggravating circumstance of a repeated offence, the Single Judge regarded a fine amounting to CHF 22,500 as appropriate and hence decided to impose said fine on the Respondent.

21. Finally, the Single Judge 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.

22. Taking into account that the responsibility of the failure to comply with the payment of the amounts as agreed in the agreement can entirely be attributed to the Respondent and that the Claimant is the successful party, the Single Judge 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 Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 130,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000.

23. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did not reply to the claim of the Claimant, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

III. Decision of the the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Club A, is 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 130,000, plus 5% interest p.a. as from 1 December 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. The Respondent is ordered to pay a fine in the amount of CHF 22,500. 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. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5. The final amount of costs of the proceedings in the amount of CHF 15,000 is to be paid by the Respondent, within 30 days as from the notification of the present decision, as follows:

a) The amount of CHF 4,000 by the Respondent to the Claimant.

b) The amount of CHF 11,000 to FIFA to above-mentioned bank account of FIFA (cf. point 4.) with reference to case nr. XXX.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 2. and 5.a) are to be made and to notify the Single Judge of every payment received.

*****

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 Single Judge of the

Players’ Status Committee:

Emilio García Silvero

Chief Legal Officer

Encl. CAS directives