F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2016-2017) – fifa.com – atto non ufficiale – Decision 8 May 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 8 May 2017,

by

Raymond Hack (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 arisen between the parties

and relating to the Player E.

Player E, Country B

I. Facts of the case

1. On an unspecified date, the Club of Country B Club A (hereinafter: the Claimant), and the Club of Country D Club C (hereinafter: the Respondent) concluded a transfer agreement (hereinafter: the first agreement) regarding the transfer of the Player E (hereinafter: the player) from the Claimant to the Respondent by means of which the Respondent undertook to inter alia pay to the Claimant, as transfer fee, EUR 2,000,000.

2. On 14 September 2016 the parties concluded a second agreement (hereinafter: the second agreement) “considering that Club C had failed to fulfil its financial obligations towards Club A (..) related to the first agreement”, by means of which the Respondent undertook to make the following payments to the Claimant:

- EUR 400,000 on 6 September 2016 (hereinafter: the first instalment);

- EUR 400,000 on 21 September 2016 (hereinafter: the second instalment). “In case of delay in payment beyond more than 7 Days (After 28th September 2016) it will be added an amount of (..) (100 000 Euros) as late payment penalty (..)” (hereinafter: the first penalty fee);

- EUR 400,000 on 6 October 2016 (hereinafter: the third instalment). “In case of delay in payment beyond more than 7 Days (After 13th October 2016) it will be added an amount of (..) (100 000 Euros) as late payment penalty (..)”(hereinafter: the second penalty fee);

- EUR 400,000 on 21 October 2016 (hereinafter: the fourth instalment). “In case of delay in payment beyond more than 7 Days (After 28th October 2016) it will be added an amount of (..) (100 000 Euros) as late payment penalty (..)” (hereinafter: the third penalty fee);

- EUR 400,000 on 5 November 2016 (hereinafter: the fifth instalment). “In case of delay in payment beyond more than 7 Days (After 12 November 2016) it will be added an amount of (..) (100 000 Euros) as late payment penalty (..)” (hereinafter: the fourth penalty fee).

3. Equally, art. 3 of the second agreement established that the Respondent had to inter alia pay to the Claimant EUR 50,000 “and the total charge and accommodation of forty persons (including the flight round trip tickets City F-City G) to organise a friendly match between the two clubs in 2017”.

4. On 30 November 2016, the Claimant lodged a claim with FIFA against the Respondent for breach of contract on the basis of the second agreement and requested from the latter the payment of EUR 1,600,000, corresponding to the second, third, fourth and fifth instalments due as per the second agreement.

5. In addition, the Claimant requested from the Respondent the payment of EUR 400,000, corresponding to the first, second, third and fourth penalty fees as well as

Player E, Country B of EUR 50,000 in accordance with art. 3 of the second agreement (cf. point I.3 above).

6. Finally, the Claimant requested from the Respondent the payment of EUR 120,000, corresponding to the costs of a trip of 40 people to Country D and asked FIFA to impose unspecific sanctions on the latter.

7. On account of the above, the Claimant explained that the second agreement was concluded following the Respondent’s failure to pay EUR 1,600,000 out of EUR 2,000,000 due as transfer fee for the player in accordance with the first agreement. According to the Claimant EUR 400,000 were paid on 6 September 2016.

8. Equally, the Claimant accused the Respondent of having failed to comply with its financial obligations as per the second agreement.

9. Hence, the Claimant deemed being entitled to receive from the Respondent the total sum EUR 2,170,000.

10. In spite of having been asked to do so, the Respondent did not reply to the claim lodged against it.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed which Procedural Rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 30 November 2016, the Single Judge of the Players’ Status Committee concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber is applicable to the present matter (cf. art. 21 of the Procedural Rules).

2. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the 2015 and 2016 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA 30 November 2016. In view of the foregoing, the Single Judge concluded that the 2016 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.

3. Subsequently, with regard to his competence, the Single Judge confirmed that on the basis of art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. f) of the Regulations he is competent to deal with

Player E, Country B the matter at stake, which concerns a dispute between two football clubs affiliated to two different associations.

4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the facts of the dispute, the arguments of the parties as well as the documentation contained in the file.

5. In doing so, the Single Judge observed that the Respondent had not submitted any comments in response to the claim lodged against it by the Claimant despite having been asked to do so by FIFA. Therefore, the Single Judge concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it had accepted the allegations of the Claimant.

6. Hence and bearing in mind the aforementioned, the Single Judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the basis of the documents on file, in other words upon the allegations and documents provided by the Claimant.

7. In this respect, the Single Judge acknowledged that, on an unspecific date, the Claimant and the Respondent had concluded a transfer agreement (hereinafter: the first agreement) regarding the transfer of the player from the Respondent to the Claimant, by means of which the Claimant was entitled to receive from the Respondent, as transfer fee, the amount of EUR 2,000,000. Furthermore, the Single Judge observed that the parties to the dispute had concluded a second agreement on 14 September 2016 (hereinafter: the second agreement) following the Respondent’s failure to partially fulfil its financial obligations towards the Claimant as per the first agreement, in accordance with which the Respondent had to make the following payments to the Claimant: EUR 400,000 on 6 September 2016 (hereinafter: the first instalment); EUR 400,000 on 21 September 2016 (hereinafter: the second instalment); EUR 400,000 on 6 October 2016 (hereinafter: the third instalment); EUR 400,000 on 21 October 2016 (hereinafter: the fourth instalment) and EUR 400,000 on 5 November 2016 (hereinafter: the fifth instalment). The Single Judge also took note of the fact that, in accordance with the second agreement, a delay in the payment of more than 7 days by the Respondent of the second, third, fourth or fifth instalments, triggered the obligation by the latter to additionally pay to the Claimant the sum EUR 100,000 on top of each delayed instalment (hereinafter: the first, second, third and fourth penalty fees, respectively). Equally, the Single Judge noticed that art. 3 of the transfer agreement inter alia provided for the Respondent to pay to the Claimant EUR 50,000 “and the total charge and accommodation of forty persons (including the flight round trip tickets City F-City G) to organise a friendly match between the two clubs in 2017”.

Player E, Country B

8. In continuation, the Single Judge observed that, in its claim to FIFA, the Claimant had inter alia requested from the Respondent the payment of second, third, fourth and fifth instalments due as per the second agreement as well as the application of first, second, third and fourth penalty fees. In addition, the Single Judge recalled that none of allegations of the Claimant had been contested by the Respondent.

9. Bearing in mind the foregoing and in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, as well as taking into account that the Respondent had never contested the allegation of the Claimant that it would have failed to pay to the latter EUR 1,600,000 out of EUR 2,000,000 due as per the second agreement, the Single Judge concluded that the Respondent, in order to fulfil its obligations towards the Claimant stipulated in the second agreement, has to pay to the Claimant the amount of EUR 1,600,000, corresponding to the second, third, fourth and fifth installments.

10. Having established the aforementioned, the Single Judge turned his attention to the second part of the Claimant’s claim, namely, its request for a penalty fee in the total amount of EUR 400,000 to be additionally paid by the Respondent in accordance with the first, second, third and fourth penalty fees stipulated in the second agreement.

11. In this context, the Single Judge recalled that the aforementioned request of the Claimant had not been challenged by the Respondent and that the latter had failed to pay to the Claimant the second, third, fourth and fifth instalments triggering the applicability of the first, second, third and fourth penalty fees as per the second agreement.

12. Equally, the Single Judge referred to his well-established jurisprudence and pointed out that the relevant penalties were not to be considered as excessive or disproportionate.

13. Hence, taking into account the aforementioned and in particular considering that the first, second, third and fourth penalty fees were clearly stipulated in the second agreement as well as bearing in mind the Respondent’s failure to pay to the Claimant the second, third, fourth and fifth instalments, the Single Judge concluded that the relevant request of the Claimant had to be accepted. Therefore, the Single Judge decided that the Respondent has to pay to the Claimant the additional amount of EUR 400,000 as penalty for the non-payment of the sums due as per the second agreement.

Player E, Country B

14. In addition and as to the request of the Claimant related to the payment of EUR 50,000 in accordance with art. 3 of the second agreement, the Single Judge was eager to emphasize once again that such request had not been contested by the Respondent. Hence and once again referring to the basic legal principle of pacta sunt servanda, the Single Judge established that, in order to fulfil its obligations as per the second agreement, the Respondent had to additionally pay to the Claimant the sum of EUR 50,000 in accordance with art. 3 of the second agreement.

15. In continuation and with regard to the Claimant’s claim pertaining to the payment of EUR 120,000 for the costs of a trip of 40 people to Country D, the Single Judge emphasized that, in accordance with art. 12 par. 3 of the Procedural Rules the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact.

16. As a result of the aforementioned provision and in the absence of any monetary value in the second contract as to the relevant trip as well as taking into account the fact that no evidence had been provided by the Claimant in support of the allegation that a trip for 40 people to Country D for the amount of EUR 120,000 in the sense of art. 3 of the second agreement had actually taken place, the Single Judge determined that this particular request of the Claimant had to be rejected.

17. Finally, the Single Judge determined that the request of the Claimant for sanctions to be imposed on the Respondent lacked legal basis and had therefore to be rejected.

18. In view of all the above, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the total amount of EUR 2,050,000.

19. Lastly, 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 the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of CHF 25,000 are levied. 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.

20. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

21. Furthermore and 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. Consequently

Player E, Country B and taking into account that the total amount at dispute in the present matter is over CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. 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 20,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

23. Consequently, the Respondent has to pay CHF 20,000 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 partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, Club A, within 30 days as from the date of notification of the present decision, the total amount of EUR 2,050,000.

3. If the aforementioned total amount is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any other claims lodged by the Claimant, Club A, are rejected.

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

5.1. The amount of CHF 15,006 has to be paid to FIFA to the following bank account:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

Player E, Country B

SWIFT: UBSWCHZH80A

5.2. The amount of CHF 4,994 has to be paid directly to the Claimant, Club A.

6. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 5.2. are to be made and to notify the Players’ Status Committee of every payment received.

*****

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

Omar Ongaro

Football Regulatory Director

Encl. CAS Directives