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 23 March 2021

Decision of the Single Judge of the

Players’ Status Committee

passed on 23 March 2021

regarding a dispute concerning the transfer of the player Luis Caicedo Medina

BY:

Vitus Derungs (Switzerland), Single Judge of the PSC

CLAIMANT:

Cruzeiro Esporte Clube, Brazil

Represented by Mr. André Oliveira

RESPONDENT:

Barcelona Sporting Club, Ecuador

Represented by Mr. Arnaldo Bismarck Alana

I. FACTS OF THE CASE

1. On 19 July 2017, the Ecuadorian club, Barcelona Sporting Club (hereinafter: the Respondent), and the Brazilian club, Cruzeiro Esporte Clube (hereinafter: the Claimant), signed a transfer agreement for the temporary transfer of the player Luis Caicena Medina from the former to the latter (hereinafter: the transfer agreement).

2. In accordance with clause 3.1 of the transfer agreement, the Respondent undertook to pay the Claimant the amount of USD 150,000, as follows:

a. USD 75,000 on 20 December 2017; and

b. USD 75,000 on 20 January 2018.

3. On 1 July 2019, the Claimant put the Respondent in default and granted it a 10 days’ deadline in order to proceed the payment of both instalments, which allegedly remained unpaid by the Respondent.

4. On 30 October 2020, the Claimant sent the Respondent a second notice and requested payment of the same amounts previously charged.

II. PROCEEDINGS BEFORE FIFA

5. On 18 November 2020, the Claimant filed the claim at hand before FIFA.

6. On 1 December 2020, the FIFA general secretariat informed the Claimant that apparently two years had elapsed from the event which originated the dispute and that the claim was apparently time-barred.

7. On 3 December 2020, the Claimant replied to FIFA’s correspondence and requested the claim to be submitted for an official decision.

8. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

9. According to the Claimant, the Respondent failed to deliver the payment of the transfer fee established in clause 3.1 of the transfer agreement. In this regard, the Claimant argued that it is entitled to an overdue payable of USD 150,000, accrued by interest at a rate of 5% per annum as of the due dates.

10. As to the admissibility of the claim, the Claimant also stated the following: “FIFA has no rules specifying which are the applicable causes of interruption for the count of the statute of limitations in its procedures. Therefore, in accordance with art. 5 of FIFA’s Disciplinary Code, the causes of interruption to be applied are the relevant ones in Swiss Law”.

11. Having said this, the Claimant referred to the content of art. 135G.1.2 of the “Loi Fédéral 220”, which allegedly provides that “one of the cases of interruption of the time limit to perform a legal act (e.g. lodge a claim) is the creditor’s pursuit of its right to be paid, by means of initiating a judicial procedure or by attempting to conciliate the matter”.

12. Consequently, the Claimant deemed that, by the notification sent to the Respondent on 1 July 2019, the Claimant “initiated its legal pursuit for the monies back then” and “the two-year time lapse shall be considered to have been interrupted”.

13. The requests for relief of the Claimant, were the following, in verbis:

“a) Acknowledge its competence on the present matter;

b) Rule the present claim as being admissible;

c) Order Barcelona to pay the amount of USD 150,000.00 (one hundred and fifty thousand US dollars), with 5% p.a. as interests to be applied as of the dates in which each instalment was due;

d) Determine that a fine shall be applied against Barcelona in case of not complying with the decision”.

b. Position of the Respondent

14. In its reply, the Respondent requested the claim to be deemed inadmissible. In support of its allegations, the Respondent referred to the content of art. 25.5 of the FIFA Regulations on the Status and Transfer of Players (RSTP), as well as to the art. 130 of the Swiss Code of Obligations.

15. Moreover, the Respondent also recalled the principles of legal certainty and due process.

16. As to the substance, the Respondent informed that it did not acknowledge the debt nor the related documents submitted by the Claimant.

17. Lastly, the Respondent requested any procedural costs to be borne by the Claimant.

III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITEE

18. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 18 November 2020 and submitted for decision on 23 March 2021. Taking into account the wording of art. 21 of the January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

19. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 23 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (edition February 2021), the Players’ Status Committee is competent to deal with the matter at stake, international dispute between clubs belonging to different associations, i.e. a Brazilian club and an Ecuadorian club.

20. As a consequence, the Players’ Status Committee would, in principle, be competent to decide on the present litigation.

21. Nevertheless, the Single Judge acknowledged that the Respondent contested the competence of FIFA’s Dispute Resolution Chamber to deal with the present case, stating that the Claimant’s claim is time-barred.

22. Having this in mind, the Single Judge referred to the content of art. 25 par. 5 of the Regulations on the Status and Transfer of Players (edition of October 2020) (hereinafter: the Regulations), which reads as follows:

“The Players’ Status Committee, the Dispute Resolution Chamber, the single judge or the DRC judge (as the case may be) shall not hear any case subject to these regulations if more than two years have elapsed since the event giving rise to the dispute. Application of this time limit shall be examined ex officio in each individual case”.

23. In view of the above, the Single Judge had to determine which is the event giving rise to the present dispute. In doing so, the Single Judge noted that the transfer agreement was executed between the parties on 19 July 2017 and that the amounts in dispute fell due, respectively, on 20 December 2017 and 20 January 2018.

24. Having said this, the Single Judge recalled that the claim was lodged on 18 November 2020.

25. On account of all the above, and considering that more than two years have elapsed between the event giving rise to the dispute, i.e. the conclusion of the transfer agreement on 19 July 2017, and the date when the claim was lodged, i.e. on 18 November 2020, the Single Judge concluded that the Claimant’s claim must be considered barred by the statute of limitations in accordance with art. 25 par. 5 of the Regulations.

26. For the sake of completeness, the Single Judge deemed important to stress that the documentation brought forward by the parties did not contain any evidence of novation of the debt or amicable settlement capable of interrupting the limitation period.

27. In this respect, the Single Judge also remarked that the Claimant’s allegation that sending a default notice to the Respondent should be considered as an interruption of the limitation period lacks of both regulatory and legal basis.

28. Therefore, the Single Judge decided that the claim of the Claimant in inadmissible.

29. Finally, the Single Judge referred to article 18 par. a lit. 1) of the Procedural Rules, according to which no costs shall be levied by the parties for claims lodged between 10 June 2020 and 31 December 2020 (both inclusive). Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

30. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant, Cruzeiro Esporte Clube, is inadmissible.

2. This decision is rendered without costs.

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:

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