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 F

I. Facts of the case

1. On 1 February 2016, the Club of Country B Club A (hereinafter: the Claimant), and the Club of Country D Club C (hereinafter: the Respondent) concluded an agreement (hereinafter: the agreement) regarding the loan of the Player E (hereinafter: the player) from the Respondent to the Claimant from 1 February 2016 until 30 June 2016.

2. According to the agreement, no loan fee was payable from the Claimant to the Respondent.

3. The agreement further specified that the Respondent “shall continue to pay the Player his basic salary while Club A [the Claimant] shall provide the Player with an apartment, car and weekly salary of 1,500 from 1st February 2016 up to 30th June 2016. Club A will invoice Club C on a monthly basis for these costs (i.e. apartment, car and weekly basic salary)”.

4. On 17 November 2016, the Claimant lodged a claim with FIFA against Club C for breach of contract and requested from the latter the reimbursement of the total amount of 52,510.08, corresponding to “wages, accommodation costs, vehicle costs and VAT as follows:”

- 32,357.15, corresponding to the “Wages from 1st February 2016 to 30th June 2016 – 151 days @ 1,500 per week“;

- 4,903.27, corresponding to the “National Insurance on above wages”;

- 8,289.38, corresponding to the following accommodation costs: “rent from 10/02/16-28/05/16 6,831.53 plus Car Park Rental 433.32 plus Council Tax 621.04 plus TV Licence 48.50, Heating 354.99”;

- 3,082.29, corresponding to the following “Car Hire costs (..)Car hire-Audi A3-05/02/16-19/05/16- Hire costs 2,432.42 plus Fuel 26.16, Collection fee 6, Road Tax 104, VAT 513.71”;

- 3,877.99, corresponding to the “value added tax”.

5. 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 17 November 2016, the Single Judge of the Players’ Status Committee concluded that the 2015 edition of the Rules Governing the Procedures of the

Player E, Country F

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 on 17 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 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 1 February 2016, the Claimant and the Respondent had entered into a loan agreement concerning the loan of the player from the Respondent to the Claimant which did not provide for a loan fee to be paid by the Claimant to the Respondent for the player. Furthermore, the Single Judge observed that, in accordance with the relevant agreement, the Respondent was responsible for paying the salary of the player. In addition, the Single Judge took note that the agreement established for the Claimant to arrange an apartment and a car for the player and to pay the “weekly salary of 1,500 from 1st February 2016 up to 30th June 2016” to the latter. Equally, the Single Judge remarked that, as per the agreement, the Claimant had to

Player E, Country F “invoice Club C on a monthly basis for these costs (i.e. apartment, car and weekly basic salary)”.

8. In continuation, the Single Judge observed that, in its claim to FIFA, the Claimant had requested from the Respondent the reimbursement of the total amount of 52,510.08, corresponding to “wages, accommodation costs, vehicle costs and VAT” spent for the player, arguing that the Respondent had failed to comply with its obligations as per the agreement and to pay the relevant amounts. In this context, the Single Judge recalled once again that all allegations of the Claimant had not been contested by the Respondent.

9. Bearing in mind the aforementioned and as to the first part of the Claimant’s claim, i.e. its request related to the reimbursement of 32,357.15, corresponding to the player’s salary between 1 February and 30 June 2016 à 1,500 per week, the Single Judge, 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, and taking into account that the Respondent had never contested the allegation of the Claimant that it would have failed to reimburse to the latter the aforementioned amount, concluded that the Respondent, in order to fulfil its obligations towards the Claimant stipulated in the agreement has to pay to the latter the amount of 32,357.15, corresponding to the salary of the player for 21 weeks and 4 days.

10. Having established the aforementioned, the Single Judge turned his attention to the second part of the Claimant’s claim, i.e. the latter’s request to be reimbursed of the sum of 4,903.27, corresponding to the “National Insurance on above wages”.

11. In this regard, the Single Judge referred to the agreement and pointed out that the document in question did not include any provision on the basis of which the Respondent would have to reimburse the “National Insurance” on the wages of the player to the Claimant. Hence, the Single Judge decided that the claim of the Claimant pertaining to the reimbursement of 4,903.27 had to be rejected.

12. In continuation and as to the Claimant’s claim related to the reimbursement of 6,831.53 for the rent of an apartment for the player as well as of 3,082.29 for the rental of a car for the latter, 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.

13. Taking into account the foregoing and in the absence of any monetary value in the agreement relating to the rental of an apartment and of a car for the player, as well as in the absence of any documentary evidence that the Claimant has in

Player E, Country F fact incurred in such costs, the Single Judge resolved that the Claimant’s claim for the reimbursement of 6,831.53 and of 3,082.29 respectively had to be rejected.

14. Finally and with regard to the further requests of the Claimant, i.e. its claim concerning the reimbursement of 433.32 for the rental of a car park; 621.04 as “Council Tax”; 48.50 for a TV licence; 354.99 as heating costs; 26.16 for the fuel of the player’s car; 6 as “collection fee”; 104 as “Road tax”; 513.71 as VAT and 3,877.99 as “value added tax”, the Single Judge recalled that the agreement did not include any provision concerning such positions. Therefore, the Single Judge deemed that he had to reject the aforementioned requests of the Claimant as the payments in question had not been contractually agreed between the parties.

15. 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 32,357.15.

16. 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.

17. 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 concluded that in view of the circumstances of the present case it would be fair and reasonable for the costs of the current proceedings to be borne in equal shares by the Claimant and the Respondent.

18. 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 and taking into account that the total amount at dispute in the present matter is below CHF 50,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

19. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 4,000.

20. Consequently, the Respondent has to pay CHF 2,000 and the Claimant has to pay CHF 2,000 to cover the costs of the present proceedings.

Player E, Country F

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 32,357.15.

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 4,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

5.1. The amount of CHF 2,000 has to be paid by the Claimant, Club A. Considering that the latter already paid an advance of costs in the amount of CHF 2,000 at the start of the present proceedings, the Claimant, Club A, is exempted from paying the abovementioned costs of the proceedings.

5.2. The amount of CHF 2,000 has to be paid by the Respondent, Club C, 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

SWIFT: UBSWCHZH80A

Player E, Country F

6- The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 2. is 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