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  Bureau of the Players’ Status Committee

passed by way of circulars on 3 May 2019,

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 20 July 2016, the Club of Country B, Club A (hereinafter: Club A or the Claimant), and the Club of Country D, Club C (hereinafter: Club C or the Respondent) signed a transfer agreement regarding the transfer of the Player of Country E, Player F, from the former to the latter.

2. In accordance with the transfer agreement, Club C undertook to pay to Club A, inter alia, the amount of EUR 200,000 –as the third and final instalment of the transfer compensation– on 15 May 2017. The transfer agreement further refers to 5% solidarity contribution being deductible from the transfer compensation.

3. By means of its correspondence dated 7 November 2018, Club A put Club C in default of payment of the amount of EUR 190,000, setting a time limit expiring on 17 November 2018 in order for it to remedy the default.

4. On 27 November 2018, Club A lodged a claim against Club C before FIFA asking that the Respondent be ordered to pay to the Claimant overdue payables in the amount of EUR 190,000 plus interest of 5% p.a. as from 15 May 2017.

5. Despite having been invited to do so, the Respondent did not reply to the claim.

II. Considerations of the Bureau of the Players’ 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 27 November 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 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 analyzed 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 27 November 2018, the 2018 edition of said regulations (hereinafter: the 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 emphasized 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, inter alia, the amount of EUR 200,000, due on 15 May 2017. In this regard, the Bureau took note that the transfer agreement explicitly stipulates that 5% solidarity contribution is deductible from the transfer compensation.

6. Moreover, the Bureau acknowledged that the Claimant lodged a claim against the Respondent before FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of EUR 190,000, corresponding to the third and final instalment of the transfer compensation, after the deduction of solidarity contribution.

7. In this context, the Bureau took particular note of the fact that, on 7 November 2018, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 17 November 2018 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, failed to present its response to the claim of the Claimant, in spite of having been invited to do so. In this way, the Bureau 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 Bureau concurred that in accordance with art. 9 par. 3 of the Procedural Rules it 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 said this, the Bureau acknowledged that, in accordance with the transfer agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 200,000 (minus the corresponding deduction of solidarity contribution) on 15 May 2017.

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

13. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit total amount of EUR 190,000 payable to the Claimant.

14. In addition, the Bureau established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

15. 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 190,000.

16. 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 190,000 as from 16 May 2017 until the date of effective payment.

17. In continuation, taking into account the consideration under number II./14. 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. That being said, the Bureau established that by virtue of art. 12bis par. 4 of the Regulations, it has competence to impose sanctions on the Respondent. In this context, the Bureau highlighted that, on 25 September 2018, 26 November 2018, 12 February 2019, 22 February 2019 and 5 April 2019 the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which a warning, a reprimand, two consecutive fines, and a ban from registering any new players for one entire registration period, the execution of which is suspended during a probation period of six months following the notification of the relevant decision, had been imposed on the Respondent by the DRC Judge and the Dispute Resolution Chamber.

19. Having said that, the Bureau established 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.

20. Moreover, 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 a more severe penalty.

21. Therefore, in accordance with art. 12bis par. 4 lit. d) in conjunction with art. 12bis paras 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 probationary period of six months following the notification of the present decision. If the Respondent commits another infringement during the six months’ probationary period, the suspension is automatically revoked and the registration ban executed.

22. Furthermore, and in due consideration of the present circumstances as well as taking into account art. 12bis par. 5 of the Regulations, the Bureau decided to impose, in addition to the aforementioned, a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the Regulations. Taking into consideration the above and that the amount due is of EUR 190,000 as well as the aggravating circumstance of a repeated offence, the Bureau regarded a fine amounting to CHF 15,000 as appropriate and hence decided to impose said fine on the Respondent.

23. 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 including its Bureau, 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.

24. 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 Respondent did not reply to the claim, 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 190,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

25. Considering the particular circumstances of the present matter, the Bureau determined the costs of the current proceedings to the amount of CHF 25,000 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 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 190,000, plus 5% interest p.a. as from 16 May 2017 until the date of effective payment.

3. In the event that the amount plus interest due to the Claimant is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

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

4.2 The amount of CHF 20,000 has to be paid to FIFA to the following bank account with reference to case no. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 4.1 are to be made and to notify the Bureau of the Players’ Status Committee of every payment received.

6. 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 probationary period of six 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.

7. The Respondent is ordered to pay a fine in the amount of CHF 15,000. The fine is to be paid within 30 days as from the date of notification of the present decision to FIFA to the bank account to the bank account foreseen in point 4.2 above with reference to case no. XXX.

*****

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 Bureau of the Players’ Status Committee:

Emilio García Silvero

Chief Legal Officer

Encl.: CAS directives