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 20 June 2019

Decision of the Single Judge of the Players’ Status Committee

passed on 20 June 2019,

by

Mr Geoff Thompson (England)

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

2. In accordance with the transfer agreement, the Respondent undertook to pay to the Claimant the total amount of USD 2,650,000, according to the following schedule of payment:

a. USD 1,500,000 as follows:

(i) USD 950,000 on 27 July 2018;

(ii) USD 100,000 on 15 October 2018;

(iii) USD 450,000 on 30 December 2018;

b. USD 1,150,000 as follows: USD 1,000,000 on 30 June 2019 and, “provided that [the Respondent] makes this payment on or before 30th of June 2019 without any delay, [the Respondent] shall be released from its payment obligation of $150.000,00 – that is the rest of the definitive transfer fee”. According to the same provision, in case the Respondent “fails to make the payment duly on time written above, the rest of the definitive transfer fee shall be paid in two instalments as follows”: (i) USD 575,000 on 30 December 2019 and (ii) USD 575,000 on 30 June 2020.

3. According to art. 2 of the transfer agreement, “any late payments under this Agreement shall be subject to penalty fee of 10% APR (Annual Percentage rate) of the amount past due at that time”.

4. By correspondence dated 14 February 2019, the Claimant put the Respondent in default of payment of the amount of USD 450,000, corresponding to the instalment that fell due on 30 December 2018, setting a time limit of 10 days in order to remedy the default.

5. On 7 March 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 USD 450,000, corresponding to the instalment that fell due on 30 December 2018 as per the transfer agreement.

6. The Claimant further asked to be awarded interest of 5% p.a. as of 30 December 2018 until the date of effective payment.

7. The Claimant also requested “the contractual penalty in the annual rate of 10% to be calculated on the defaulted amount of 450.000,00 USD and for the period between 30 December 2018 and the date of effective payment”.

8. In reply to the claim, the Respondent indicated that the parties were “currently in talks to agree on the payment of the amount claimed”.

9. On 14 May 2019, however, the Claimant informed FIFA that the parties had not found an amicable resolution to the present matter and requested to “continue with the proceedings for a final decision”.

II. Considerations of the Single Judge of the Players’ 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 7 March 2019. Consequently, the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is 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 June 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 June 2018), and considering that the present claim was lodged on 7 March 2019, the June 2018 edition of the Regulations on the Status and Transfer of Players (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 regarding the transfer of the player, pursuant to which the Respondent undertook to pay to the Claimant the total amount of USD 2,650,000 in various instalments, with an instalment of USD 450,000 falling due on 30 December 2018. Furthermore, art. 2 of the transfer agreement stipulates that “any late payments under this Agreement shall be subject to penalty fee of 10% APR (Annual Percentage rate) of the amount past due at that time”.

6. The Single Judge further acknowledged that, on 7 March 2019, 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 USD 450,000, corresponding to the instalment that fell due on 30 December 2018 as per the transfer agreement.

7. The Single Judge further observed that the Claimant asked to be awarded 5% interest p.a. as of 30 December 2018 until the date of effective payment.

8. Moreover, the Single Judge took note that the Claimant also requested “the contractual penalty in the annual rate of 10% to be calculated on the defaulted amount of 450.000,00 USD and for the period between 30 December 2018 and the date of effective payment”.

9. In this context, the Single Judge took particular note of the fact that, on 14 February 2019, the Claimant put the Respondent in default of payment of the aforementioned instalment that fell due on 30 December 2018 amounting to USD 450,000, setting a time limit of 10 days in order to remedy the default.

10. 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).

11. Subsequently, the Single Judge observed that the Respondent, for its part, only claimed that the parties were “in talks” to settle the dispute amicably. The Single Judge took note, however, that the Claimant indicated afterwards that no settlement agreement had been reached between the parties.

12. Having said this, the Single Judge acknowledged that, in accordance with the transfer agreement, the Respondent was obliged to pay to the Claimant the amount of USD 450,000 on 30 December 2018.

13. 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.

14. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit USD 450,000 to the Claimant.

15. 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.

16. 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 USD 450,000.

17. Furthermore, the Single Judge observed that the Claimant requested interest at a rate of 5% p.a. and of 10% p.a. on the amount of USD 450,000 for the same period of time, i.e. as from 30 December 2018 and the date of effective payment. In light of the fact that the interest of 10% p.a. was contractually agreed between the parties, the Single Judge decided to award to the Claimant interest at the rate of 10% p.a. on the relevant instalment as from 31 December 2018 until the date of effective payment.

18. 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.

19. 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.

20. In this respect, 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.

21. Furthermore, 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.

22. 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.

23. 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.

24. 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.

25. 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 including its Single Judge, costs in the maximum amount of CHF 25,000 are levied and according to which 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 amount as agreed in the transfer agreement can entirely be attributed to the Respondent and that the claim of the Claimant has been fully accepted, 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 USD 450,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

27. Considering that the case at hand did not compose any complex factual or legal issues, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000 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 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 overdue payables in the amount of USD 450,000, plus interest at the rate of 10% p.a. as from 31 December 2018 until the date of effective payment.

3. A warning is imposed on the Respondent.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2 above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due plus interest in accordance with point 2 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 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

9. The final amount of costs of the proceedings of CHF 20,000 is to be paid by the Respondent within 45 days as from the date of notification of the present decision as follows:

a) The amount of CHF 5,000 has to be paid directly to the Claimant.

b) 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

*****

Note relating to the motivated decision (legal remedy):

According to article 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