F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2020-2021) – fifa.com – atto non ufficiale – Decision 25 August 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 25 August 2020,

regarding a dispute concerning the transfer of the player Siaka BAGAYOKO

BY:

Johan Van Gaalen (South Africa)

CLAIMANT:

Djoliba AC, Mali

Represented by Schweele Law Office

RESPONDENT:

CS Sfaxien, Tunisia

I.FACTS

1.On 12 September 2019, the parties concluded an agreement regarding the permanenttransfer of the player, Siaka Bagayoko (hereinafter: the player) from the Claimant to theRespondent (hereinafter: transfer agreement).

2.According to the transfer agreement, the Respondent undertook to pay to the Claimanta transfer fee of EUR 25,000 within 15 days after the ITC (International TransferCertificate) was issued.

3.Within this context, according to the information available in the TMS, the ITC wasreceived on 20 September 2019.

4.On 24 January 2020, the Claimant put the Respondent in default and indicating thefollowing:

“According to agreement signed between the parties in 12thSeptember 2019 (Article 2),Djoliba AC and CB Sfaxien agreed that upon the transfer of the Player to CS Sfaxien, theamount of 25.000,00 EUR, representing the transfer fee paid for the transfer, wouldbecome due to Djoliba AC, within 15 days from the receipt of the respective ITC.Considering the club Djoliba AC has not yet received any amount referring to thementioned transfer fee, we hereby provide a default notice granting a final period of10days to comply with the agreed payment, according to the invoice enclosed”

5.On 9 March 2020, the Claimant lodged a claim before FIFA against the Respondent.

6.Specifically, the Claimant requested [to accept] “the present claim and issues an award inits favor, sentencing the Respondent to pay to the Claimant the amount of 25,000 EURstill due in connection with the transfer of the player Siaka Bagayoko, plus interestof 5 % p.a. as of the due date(s) until the date of effective payment”.

7.Despite being invited to do so, the Respondent failed to reply to the Claimant.

II.CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1.First of all, the Single Judge of the PSC (hereinafter also referred toas Chamber or DRC) analysed whether it was competent to deal with the case at hand.Taking into account the wording of art. 21 of the 2019 edition of the Rules Governingthe Procedures of the Players’ Status Committee and the Dispute Resolution Chamber(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rulesis applicable to the matter at hand.

2.Subsequently, the Single Judge of the PSC referred to art. 3 par. 1 of the ProceduralRules and emphasised that, in accordance with art. 24 par. 1 in combination with art.22 lit. f) of the Regulations on the Status and Transfer of Players, the Single Judge of thePSC is competent to deal with disputes between clubs belonging to different associations.

3.In continuation, the Single Judge of the PSC analysed which edition of the Regulations ofthe Status and Transfer of Players should be applicable to the present matter. In thisrespect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and

2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 9 March 2020, the January 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4.With the above having been established, the Single Judge of the PSC entered into thesubstance of the matter. In doing so, it started to acknowledge the facts of the case aswell as the documents contained in the file. However, the Single Judge of the PSCemphasized that in the following considerations it will refer only to facts, arguments anddocumentary evidence which it considered pertinent for the assessment of the matter athand.

5.In this respect, the Single Judge noted that On 12 September 2019, the parties concludedan agreement regarding the permanent transfer of the player, Siaka Bagayoko and that,according to said agreement, the Respondent undertook to pay to the Claimant a transferfee of EUR 25,000 within 15 days after the ITC (International Transfer Certificate).

6.Subsequently, the Single Judge observed that, on 9 March 2020, the Claimant lodged aClaimant against the Respondent, by means of which he requested the payment of theentire transfer fee, i.e. EUR 25,000.

7.Moreover, the Single Judge of the PSC noted that the Respondent failed to present itsresponse to the claim of the Claimant, in spite of having been invited to do so. By notpresenting its position to the claim, the Single Judge of the PSC was of the opinion thatthe Respondent renounced its right of defense and, thus, accepted the allegations of theClaimant.

8.Furthermore, as a consequence of the aforementioned consideration, the Single Judge ofthe PSC concurred that in accordance with art. 9 par. 3 of the Procedural Rules, it shalltake a decision upon the basis of the documentation already on file; in other words, uponthe statements and documents presented by the Claimant.

9.Consequently, and considering that it can be clearly established that the total claimedamount remained outstanding, in strict application of the principle of pacta suntservanda, the Single Judge of the PSC established that the Respondent has to pay to theClaimant, the total outstanding amount of EUR 25,000, as agreed in the applicablecontract.

10.Moreover, taking into account the request of the Claimant as well as the longstandingjurisprudence in this regard, the Single Judge of the PSC decided to award 5% interestp.a. over said amount as from the due date.

11.In continuation, taking into account the previous considerations, the Single Judge of thePSC referred to art.12bis par. 2 of the Regulations which stipulates that any club foundto have delayed a due payment for more than 30 days without a prima facie contractualbasis may be sanctioned in accordance with art. 12bis par. 4 of the Regulations.

12.The Single Judge of the PSC established that in virtue of art. 12bis par. 4 of theRegulations it has competence to impose sanctions on the Respondent. In this context,the Single Judge of the PSC highlighted that the Respondent had been found to have delayed a due payment for more than 30 days without a prima facie contractual basis. In view of the above, the Single Judge of the PSC decided to impose a warning on the Respondent.

13.Moreover, the Single Judge of the PSC referred to art. 12bis par. 6 of the Regulations,which establishes that a repeated offence will be considered as an aggravatingcircumstance and lead to a more severe penalty.

14.In continuation, the Single Judge of the PSC referred to art. 25 par. 2 of the Regulationsin combination with art. 18 par. 1 of the Procedural Rules, according to which in theproceedings before the Dispute Resolution Chamber relating to disputes regardingsolidarity mechanism costs in the maximum amount of CHF 25,000 are levied. The costsare to be borne in consideration of the parties’ degree of success in the proceedings.

15.In this respect, the Single Judge of the PSC referred to the Covid-19 Football RegulatoryIssues – FAQ, published on 11 June 2020 which establish that, given the currentcircumstances, for any claim lodged prior to 10 June 2020 which has yet to be decided,the maximum amount of the procedural costs shall be equivalent to any advance of costspaid. Thus, considering that the paid amount that was paid at the beginning of theproceedings, the Single Judge decided to impose the payment of CHF 3,000 by theRespondent.

16.Finally, taking into account the previous considerations, the Single Judge of the PSCreferred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with itsdecision, the pertinent FIFA deciding body shall also rule on the consequences derivingfrom the failure of the concerned party to pay the relevant amounts of outstandingremuneration and/or compensation in due time.

17.In this regard, the Single Judge of the PSC pointed out that, against clubs, theconsequence of the failure to pay the relevant amounts in due time shall consist of a banfrom registering any new players, either nationally or internationally, up until the dueamounts are paid and for the maximum duration of three entire and consecutiveregistration periods.

18.Therefore, bearing in mind the above, the Single Judge of the PSC decided that, in theevent that the Respondent does not pay the amounts due to the Claimant within 45 daysas from the moment in which the Claimant, following the notification of the presentdecision, communicates the relevant bank details to the Respondent, a ban fromregistering any new players, either nationally or internationally, for the maximumduration of three entire and consecutive registration periods shall become effective onthe Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

19.Finally, the Single Judge of the PSC recalled that the above-mentioned ban will be liftedimmediately and prior to its complete serving upon payment of the due amounts, inaccordance with art. 24bis par. 3 of the Regulations.

III.DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1.The claim of the Claimant, Djoliba AC, is accepted.

2.The Respondent, CS Sfaxien, has to pay to the Claimant, the following amount:

-USD 25,000 plus 5% interest p.a. as from 5 October 2019 until the date of effectivepayment.

3.A warning is imposed on the Respondent.

4.The Claimant is directed to immediately and directly inform the Respondent of therelevant bank account to which the Respondent must pay the due amount.

5.The Respondent shall provide evidence of payment of the due amount in accordance withthis decision to psdfifa@fifa.org, duly translated, if applicable, into one of the officialFIFA languages (English, French, German, Spanish).

6.In the event that the amount due, plus interest as established above is not paid by theRespondent within 45 days, as from the notification by the Claimant of the relevantbank details to the Respondent, the following consequences shall arise:

1.

The Respondent shall be banned from registering any new players, either nationallyor internationally, up until the due amount is paid and for the maximum durationof three entire and consecutive registration periods. The aforementioned banmentioned will be lifted immediately and prior to its complete serving, once thedue amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision is still not paid by theend of the ban of three entire and consecutive registration periods, the presentmatter shall be submitted, upon request, to the FIFA Disciplinary Committee.

7.The final costs of the proceedings in the amount of CHF 3,000 are to be paid by theRespondent to FIFA.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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