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 12 January 2021
Decision of the
Single Judge of the Players' Status Committee
Passed on 12 January 2021,
regarding a contractual dispute concerning the player Nikola Maras
BY:
Stefano La Porta (Italy), Single Judge of the PSC
CLAIMANT:
FK RAD BEOGRAD, Serbia
Represented by Mr. Jan Schweele
RESPONDENT:
GD DE CHAVES, Portugal
Represented by Mr. Mário Santos Paiva
I. FACTS OF THE CASE
1. On 29 August 2017, the Serbian club, FK Rad Beograd (hereinafter: the Claimant) and the Portuguese club, GD de Chaves (hereinafter: the Respondent) signed a transfer agreement (hereinafter: the contract) for the transfer of the player Nikola Maras (hereinafter: the player).
2. According to clause 2.1 of the contract, the Respondent undertook to pay to the Claimant a transfer fee of EUR 300,000.
3. Moreover, according to clause 2.2 of the contract, the Claimant was also entitled to 30% “of the net added value” “in the event [of a] future definitive transfer of the player from [the Respondent] to a third club”. The relevant clause reads as follows:
“2.2 In the event [of] a future definitive transfer of the player from [the Respondent] to a third club, [the Claimant] shall additionally have the right to receive 30% (thirty percent) of the net added valued received by [the Respondent] from the buying club. The added value amount shall be determined by taking the gross amount effectively received by [the Respondent] the following amounts (sic):
- Any and all expenses related to such transfer, including but not limited to taxes, fees and commissions.
- Any and all expenses concerning (i) training compensation and/or the solidarity contribution pursuant to the FIFA Regulations from the [present] transfer and from the transfer of the player from [the Respondent] to a third club; and
- Any and all amounts paid to [the Claimant] pursuant to this agreement, including those specified in clauses 2.1 above”.
4. On 13 August 2019, the player was transferred from the Respondent to the Spanish club, UD Almeria, on a loan (temporary) basis. UD Almeria undertook to pay the Respondent EUR 200,000 net for such loan transfer. Additionally, as per the relevant loan transfer agreement, UD Almeria was granted the option to acquire the player’s registration on a definitive basis against payment of EUR 575,000.
5. Additionally, and still in the context of the cited loan, the parties thereto agreed that if the player played in 50% of the Respondent’s matches, UD Almeria would pay a contingent fee of EUR 25,000 net to the Respondent.
6. On 29 June 2020, UD Almeria and the Respondent executed an amendment to the loan agreement (hereinafter: the subsequent transfer agreement), according to which the player was transferred to the former from the latter on a definitive basis against payment of EUR 605,000 for 75% of the player’s “economic rights”, payable as follows:
a. EUR 230,000 by 30 September 2020;
b. EUR 200,000 by 30 April 2021;
c. EUR 175,000 by 30 September 2021.
7. On 25 September 2020 and 7 October 2020, the Claimant put the Respondent in default of payment of EUR 159,000 corresponding to the sell-on fee under clause 2.2 of the contract.
8. On 15 October 2020, the Claimant filed the claim at hand against the Respondent, requesting payment of EUR 159,000 corresponding to the sell-on fee under clause 2.2 of the contract. The Claimant made reference to TMS case 6646 whereby FIFA disclosed the transfer of the player from the Respondent to UD Almería.
9. Alternatively, the Claimant asked that the Respondent is sentenced to pay EUR 46,500 plus 5% p.a. interest as of the due date, until the date of effective payment, “if FIFA considers that UD Almeria only paid to the Respondent € 455,000 up until this moment (loan fee plus appearance bonus plus first instalment of the buy option)”.
10. In its reply to the claim, the Respondent argued that it was an illegitimate party to the proceeding since it was a different legal entity than Grupo Desportivo de Chaves – SAD. The Respondent further argued that it was not a party to the contract, and that the claim had been wrongly addressed to it.
11. As to the substance of the matter, the Respondent argued that in accordance with the contract the Claimant was only entitled to receive amounts from a definitive transfer of the player.
12. The Respondent went on to state that it never received any notification from the Claimant, nor any invoice. Moreover, the Respondent argued that “even if the Respondent is to be considered responsible for any payment, the Claimant should have sent all the Anti money-laundering requests, as per any payments for outside UE that shall be preceded of documents under the directive 2015/849/UE and 2016/2258/UE”. The Respondent is of the opinion that it cannot make payment under Portuguese Law in absence of such documents.
13. The Respondent further argued as follows:
“To conclude, the Respondent had the following costs that shall be considered in clause 2.2 of the Agreement:
a. Regarding the transfer from the Claimant to the Respondent:
i. EUR 25.000 + VAT (23%); plus 10% (ten per cent) of the net value of any possible definitive transfer + VAT (23%) (Exhibit 2);
Regarding the definitive transfer of the Player from the Respondent to UD Almeria:
EUR 28.875 + VAT (23%) , plus EUR 10.000 + VAT (23%). (Exhibit 3).
Taking in consideration the Exhibit 3, only and if 30% of the loan is considered as due to the Claimant, the EUR 10.000 shall be considered to deduct to the amounts to be paid to the Claimant”.
II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE
a. Competence and applicable legal framework
14. 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 15 October 2020 and submitted for decision on 12 January 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.
15. Subsequently, the Single Judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and par. 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition January 2021) he is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations, i.e. a Serbian club and a Portuguese club.
16. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition January 2021), and considering that the present claim was lodged on 15 October 2020, the October 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.
b. Burden of proof
17. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, he stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.
18. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.
c. Merits of the dispute
19. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.
i. Main legal discussion and considerations
20. By doing so, the Single Judge started by taking note of the Respondent’s objection regarding its standing in these proceedings, i.e. that it lacks standing to be sued. The Single Judge in this respect confirmed that the question regarding standing pertians to the merits of the dispute.
21. To this end, the Single Judge highlighted that the claim was notified to the e-mail addresses indicated by Grupo Desportivo de Chaves – Futebol SAD (Club ID 2332) found in the Transfer Matching System (TMS), the popular name of which is described in TMS as “GD de Chaves”. Furthermore, the Single Judge observed that there is no other club in TMS with the name “Chaves”.
22. Consequently, the Single Judge confirmed that the Respondent has standing to be sued insofar as it is the party that executed the contract with the Claimant, and the club to which the claim was correctly addressed both by Claimant in its statement of claim and by the FIFA Administration in its letter inviting the Respondent to file its position to the claim of the Claimant.
23. Subsequently, the Single Judge observed that the parties dispute whether the sell-on fee established under clause 2.2 of the contract has been triggered by both the loan (temporary) and permanent transfers of the player from the Respondent to UD Almeria, and hence what amounts, if any, are due to the Claimant.
24. In this respect, the Single Judge recalled the clear and unequivocal wording of clause 2.2 of the contract, and confirmed that the sell-on fee is only due in connection with a permanent transfer of the player. Consequently, the Single Judge found that the loan of the player to UD Almeria (and the other contingent fees agreed in connection with such loan) cannot be considered under the auspices of said clause. The Single Judge thus decided to reject this part of the Claimant’s claim.
25. Accordingly, the Single Judge turned to the permanent transfer of the player to UD Almeria, which was established under the subsequent transfer agreement to take place against payment of EUR 605,000 in three instalments.
26. In this respect, the Single Judge once again referred to the wording of clause 2.2 of the contract, and noted that the Claimant and the Respondent established therein that the sell-on fee was payable over the “net added value”, which included “Any and all amounts paid to [the Claimant] pursuant to this agreement, including those specified in clauses 2.1 above”.
27. In other words, the Single Judge found once again that clause 2.2 clearly established that the sell-on fee was to be calculated on the 30% over the amounts received by the
Respondent, deducting the EUR 300,000 paid as a transfer fee by the Respondent to the Claimant. In the Single Judge’s view, that means, simply put, that the Claimant – subject to the additional applicable deductions described under clause 2.2 of the contract – is entitled to 30% of EUR 305,000, i.e. 30% of EUR 605,000, as agreed under the subsequent transfer agreement, minus EUR 300,000 paid by the Respondent to the Claimant under the contract.
28. To this end, the Single Judge highlighted that such calculation is naturally made at present date and therefore is without prejudice of other amounts that might or might not be due to the Respondent under the subsequent transfer agreement – something that he stressed it is not for him to decide, given the fact that the claim of the Claimant is premature, as per the reasoning that follows.
29. The Single Judge recalled that the transfer fee of EUR 605,000 under the subsequent transfer agreement is to be paid in three instalments, namely (a) EUR 230,000 by 30 September 2020; (b) EUR 200,000 by 30 April 2021; and (c) EUR 175,000 by 30 September 2021.
30. Consequently, in the Single Judge’s opinion, the amount of 30% as sell-on fee is not yet due by the Respondent to the Claimant on account to the fact that UD Almeria only paid EUR 230,000 to the Respondent, i.e. less than EUR 300,000. The Single Judge determined accordingly that sell-on fee, calculated under clause 2.2 of the contract over the “net added value”, cannot be collected at this time since the “net added value” of the subsequent transfer of the player from the Respondent to UD Almeria is presently EUR 0.00 (nil).
31. All of the above led the Single Judge to decide that the claim of the Claimant regarding the sell-on fee payable by the Respondent in connection with the subsequent transfer agreement was filed before the concerned amounts fell due and is hence premature.
d. Costs
32. The Single Judge referred to article 18 par. 1 lit. i) of the Procedural Rules, according to which “For any claim or counterclaim lodged between 10 June 2020 and 31 December 2020 (both inclusive), no procedural costs shall be levied”. Since the claim was lodged on 15 October 2020, he decided that no procedural costs were to be imposed on the parties.
33. 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.
34. The Single Judge concluded his deliberations by rejecting any further claims of any of the parties.
III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE
1. The Respondent, GD DE CHAVES, has standing to be sued.
2. The claim of the Claimant, FK RAD BEOGRAD, pertaining to the permanent transfer of the player Nikola Maras from the Respondent to the Spanish club UD Almeria is premature.
3. Any further claims of the Claimant are rejected.
4. The decision is rendered free of 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).
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