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 29 July 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 29 July 2020,

regarding a contractual dispute concerning the player Bogdan MLADENOVIC

BY:

Johan van Gaalen (South Africa)

CLAIMANT / COUNTER-RESPONDENT:

FK Rad, Serbia

Represented by Mr. Jan Schweele

RESPONDENT / COUNTER-CLAIMANT:

Gil Vicente FC, Portugal

I. FACTS

1. On 2 August 2019, the Serbian club, FK Rad (hereinafter: FK Rad or the Claimant / Counter-Respondent) and the Portuguese club, Gil Vicente FC (hereinafter: Gil Vicente or the Respondent / Counter-Claimant) concluded a transfer agreement regarding the permanent transfer of the player Bogdan Mladenovic from the Claimant to the Respondent.

2. Article 1 of the transfer agreement stipulated that the validity of the transfer agreement is “subject to the following suspensive conditions:

•The Player has successfully completed the medical examination, as conducted by Gil Vicente FC;

•Gil Vicente FC and the player have entered into a valid employment contract.”

3. Article 3 of the transfer agreement stipulates that FK Rad is entitled to a transfer fee of EUR 80,000, payable in two instalments:

- EUR 50,000 “upon signing the Transfer Agreement”

- EUR 30,000 “on August 31st 2019 at the latest”.

4. The clause further stipulated that the payments will be made “upon receipt of a valid corresponding invoice.”

5. On 6 August 2019 and 31 August 2019, FK Rad sent the respective invoices to Gil Vincente FC, which indicated the following:

”The amount has to be paid on the mentioned account:

Intermediary Bank/Correspondent Bank BKAUATWW BANK AUSTRIA CREDITANSTALT AG VIENNA

Account with institution/Beneficiary's Bank BACXRSBG UN/CREDIT BANK SERBIA RAJICEVA 27-29 BEOGRAD SERBIA

Beneficiary RS35170003000830000152

FK RAD DP BEOGRAD BEOGRAD CRNOTRAVSKA BB SERBIA

TAX ID 100376172 -VAT out of Scope FKRAD General Manager Uros Tosic”

6. On 2 October 2019, FK Rad put Gil Vincente in default of payment of EUR 80,000, corresponding to the unpaid transfer compensation as foreseen in the transfer agreement, setting a time limit expiring in 10 days, in order to remedy the default, to no avail.

7. On 30 October 2019, FK Rad lodged a claim against Gil Vincente FC, asking that the latter be ordered to pay FK Rad overdue payables in the amount of EUR 80,000, corresponding to the entire unpaid compensation as foreseen in the transfer agreement. FK Rad further requested “interest as of the due dates.”

8. In its reply to the claim, Respondent argued that the transfer agreement was not valid because the player failed the medical exams, which was stipulated as a suspensive condition for the validity of the transfer agreement.

9. The Respondent further argued that it paid the amount of EUR 50,000 to the Claimant, and provided a document of an alleged wire transfer of having paid said amount to the following account:

Beneficiary: Forn Fudbalski Klub RAD IBAN

Beneficiary: ES8100495415432418023557

Beneficiary Bank Identification: BSCHESMM

Sender Operation Reference: Instruction Reference:

CCCMPT0821010904 Transfer amount: 50.000,00

10. In view of the above, the Respondent claimed back the first instalment of EUR 50,000, which was allegedly already paid to the claimant.

11. In its replica, FK Rad stated that, as per FIFA jurisprudence the validity of a contract cannot be subject to the passing of a medical examination. What is more, FK Rad pointed out that the alleged payment of EUR 50,000 had been made to a Spanish account which is not under its name. Therefore, FK Rad insisted in its previous position.

12. Based on the information available on TMS, the Respondent signed an employment agreement with the player on 5 August 2019 and requested the ITC via the Federação Portuguesa de Futebol (FPF) on 7 August 2019. According to the same source, said ITC was received on 8 August 2019..

13. Following the same source, in January 2020, the player subsequently moved to another Serbian club, FK Vojvodina. Within the relevant transfer instruction, FK Vojvodina, uploaded a letter signed by the Respondent, indicating the following:

“This is to confirm that the employment contract between Gil Vicente Futebol Clube, Futebol SDUQ, LDA and the player Bogdan Mladenovic was terminated by mutual agreement on 13 January 2020.”

14. In addition, the Federação Portuguesa de Futebol confirmed that the player had been registered with the Respondent as a professional.

II. CONSIDERATIONS 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) analyzed whether he was competent to deal with the matter at hand. In this respect, he took note that, according to art. 21 of the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: the Procedural Rules), said edition of the Procedural Rules is applicable to the matter at stake.

2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at stake which concerns a dispute between two club belonging to different associations.

3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable to the matter at hand. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the 2020 edition of the Regulations on the Status and Transfer of Players, and on the other hand, to the fact that the present claim was lodged with FIFA on 30 October 2019. In view of the foregoing, the Single Judge concluded that the October 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand (cf. art. 26 par. 1 and 2 of the Regulations).

4. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. However, the Single Judge emphasized that in the following considerations it will refer only to the facts, arguments and documentary evidence, which he considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge took note that, on 2 August 2019, the parties concluded a transfer agreement regarding the permanent transfer of the player Bogdan Mladenovic from the Claimant to the Respondent.

6. In relation to said agreement, the Single Judge noted that in its art. 3 the parties agreed upon the following conditions:

- EUR 50,000 “upon signing the Transfer Agreement”

- EUR 30,000 “on August 31st 2019 at the latest”.

7. Subsequently, the Single Judge took note that the Claimant lodged a claim before the Respondent and requested the payment of the total amount of EUR 80,000, and corresponding to the entire transfer fee as stipulated in said agreement.

8. Thereafter, the Single Judge turned his attention to the reply of the Respondent. In this respect, he observed that, according to the latter, the transfer agreement was not valid because the player failed the medical exams, which was stipulated as a suspensive condition for the validity of the transfer agreement and therefore claimed back the first instalment of EUR 50,000, which was allegedly already paid to the claimant.

9. In view of the dissent between the parties, the Single Judge considered that the main legal issue at stake is to establish whether the transfer agreement was indeed valid or not.

10. In this respect, the Single Judge referred to Article 1 of the transfer agreement, which stipulated that the validity of the transfer agreement is “subject to the following suspensive conditions:

•The Player has successfully completed the medical examination, as conducted by Gil Vicente FC;

•Gil Vicente FC and the player have entered into a valid employment contract.”

11. In this respect, the Single Judge observed that, from the documentation contained in the TMS, it appears that Gil Vicente signed an employment contract with the player and registered him on 8 August 2019. The Single Judge further noted that the player and Gil Vicente mutually agreed to terminate their employment relationship on 13 January 2020.

12. As a result, the Single Judge concluded that the transfer agreement was validly concluded and executed, and thus established that the Respondent’s objection had to be dismissed.

13. Thereafter, the Single Judge went on to examine the Respondent’s argument, according to which it paid the amount of EUR 50,000 to the Claimant.

14. In relation to said payment, the Single Judge observed that, according to the Claimant, the amount of EUR 50,000 was apparently paid to a bank account in Spain (i.e. ES8100495415432418023557) that was not under his name, whereas, in its invoice, it provided its bank account number in Serbia. (i.e. RS35170003000830000152).

15. In view of the above, the Single Judge wished to highlight that, in principle, in order to discharge the Respondent from its financial obligations towards the Claimant, it should pay the agreed amounts as properly invoiced by the latter.

16. Thus, the Single Judge understood that, in the matter at stake, it could only take into account a payment that was done in accordance with the invoice that was provided by the Claimant.

17. Consequently, the Single Judge established that he could not take into account the alleged payment performed by the Respondent.

18. As a result of all of the above, the Single Judge established that the total amount of EUR 80,000, as stipulated in the transfer agreement, remained outstanding.

19. Thus, in application of the principle of pacta sunt servanda, the Single Judge established that the Respondent shall pay to the Claimant, the total amount of EUR 80,000.

20. Taking into account the longstanding jurisprudence in this regard as well as FK Rad’s request, the Single Judge decided to award 5% interest p.a. as from the due dates over the aforementioned amount. Until the date of effective payment.

21. In continuation, taking into account the previous considerations 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.

22. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent.

23. Bearing in mind the above, the Single Judge decided to impose a warning on the Respondent in accordance with art. 12bis par. 4 lit. a) of the Regulations.

24. Furthermore, 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.

25. 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.

26. 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.

27. 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.

28. Finally, in this respect, the Judge referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 that, given the current circumstances, 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 costs paid. Thus, considering that the advance of costs amounts to CHF 2,000, the Single Judge established said amount as the payable procedural costs, which had to be paid by Gil Vicente in view of the outcome of the matter.

29. The Single Judge concluded by establishing that, as a logical consequence of all of the above, that the counterclaim of Gil Vicente FC is rejected.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant / Counter-Respondent, FK Rad, is accepted.

2. The counterclaim of the Respondent / Counter-Claimant, Gil Vicente FC, is rejected.

3. The Respondent / Counter-Claimant has to pay to the Claimant / Counter-Respondent, the following:

- EUR 50,000 plus 5% interest p.a. as from 3 August 2019 until the date of effective payment;

- EUR 30,000 plus 5% interest p.a. as from 1 September 2019 until the date of effective payment;

4. A warning is imposed on the Respondent / Counter-Claimant.

5. The Claimant / Counter-Respondent is directed to immediately and directly inform the Respondent / Counter-Claimant of the relevant bank account to which the Respondent / Counter-Claimant must pay the due amount.

6. The Respondent / Counter-Claimant shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

7. In the event that the amount due, plus interest as established above is not paid by the Respondent within 45 days, as from the notification by the Claimant / Counter-Respondent of the relevant bank details to the Respondent / Counter-Claimant, the following consequences shall arise:

▪ 1.

The Respondent / Counter-Claimant 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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due 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 the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee.

8. The final costs of the proceedings in the amount of CHF 2,000 are to be paid by the Respondent / Counter-Claimant 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

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