DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - COMMISSIONE PER LO STATUS DEI CALCIATORI - CONTROVERSIE TRA SOCIETA'

• Data decisione: 8 dicembre 2020 • Stagione sportiva: 2020/2021

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 8 December 2020

Decision of the

Single Judge of the PSC

passed on 8 December 2020

regarding a dispute concerning the transfer of the player Kevin Andrés Agudelo Ardila

BY:

José Luis Andrade (Portugal), Single Judge of the PSC

CLAIMANT:

CD Atlético Huila, Colombia

Represented by Ms Laura Melissa Marina Loaiza

RESPONDENT:

Genoa Cricket & Football Club, Italy

Represented by Lombardi Associates

I. Facts

1. On 6 August 2019, the parties concluded an agreement for the transfer of the player Kevin Andrés Agudelo Ardila from the Claimant to the Respondent.

2. Clause 2.1. of the agreement stipulated the following:

“For the permanent transfer of the Player, Genoa shall pay Atletico Huila transfer compensation of USD 2.700.000,00 (two millon seven hundred thousand U.S. dollars) (hereinafter, the "Permanent transfer Amount").

The Permanent Transfer Amount shall be paid as follows:

(i) USD 1.350.000,00 (One million three hundred fifty thousand U.S. dollars) by 31 October 2019;

(ii) USD 1.350.000,00 (One million three hundred fifty thousand U.S. dollars) by 31 July 2020;"

3. On 16 June 2020, the Single Judge made the following decision (20-00450):

“1. The claim of the Claimant, Club Deportivo Atlético Huila S.A., is partially accepted.

2. The Respondent, Genoa Cricket and Football Club, has to pay to the Claimant the amount of USD 1,293,279.75 plus 5% interest p.a. as from 16 December 2019 until the date of effective payment.

3. Any further claims of the Claimant are rejected.”

4. On 5 August 2020, the Claimant sent a default notice requesting the payment of USD 1,350,000, which was due on 31 July 2020, and granting 10 days to remedy the default.

5. On 1 September 2020, the claimant lodged a claim before FIFA and requested the amount of USD 1,350,000, corresponding to the instalment due on 31 July 2020, plus “legal interests”.

6. The claimant further requested the payment of the legal costs as well as legal fees for “not less than USD 20,000”.

7. In its reply to the claim, the Respondent acknowledged that “due to cash flow issues, Genoa was not in a position to comply with the payment of the first instalment as scheduled.”

8. In this respect, the Respondent considered that the previous decision of the Single Judge shall be deemed as res iudicata.

9. In addition, the Respondent considered that Claimant based its claim on a number of non-disclosable documents, violating procedural and deontological principle of laws.

II. Considerations of the Single Judge of the PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as 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 June 2020 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.

2. Subsequently, the Single Judge of the PSC referred to art. 3 par. 1 of the Procedural Rules 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 the PSC 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 of the Status and Transfer of Players should be applicable to the present matter. In this respect, 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 1 September 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 the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge noted that, on 6 August 2019, the parties concluded an agreement for the transfer of the player Kevin Andrés Agudelo Ardila from the Claimant to the Respondent, for the following financial conditions:

The Permanent Transfer Amount shall be paid as follows:

(i) USD 1.350.000,00 (One million three hundred fifty thousand U.S. dollars) by 31 October 2019;

(ii) USD 1.350.000,00 (One million three hundred fifty thousand U.S. dollars) by 31 July 2020;"

6. Subsequently, the Single Judge observed that the Claimant lodged a claim before FIFA, and requested the payment of the amount of USD 1,350,000, corresponding to the instalment due on 31 July 2020, as quoted in the previous paragraph.

7. Conversely, the Single Judge took note of the Respondent’s position, according to which the matter shall be deemed as res iudicata insofar the Single Judge already rendered a decision.

8. In relation to said argument, the Single Judge acknowledged that, indeed, on 16 June 2020, the Single Judge made a decision (20-00450), but wished to highlight that said decision was related to the first instalment, and not to the second one. In this scenario, the Single Judge underlined in this matter that the previous decision was adopted on 16 June 2020, and could therefore not be related to the second instalment, since this amount was due on 31 July 2020, i.e. after the decision rendered under ref. 20-00450.

9. As a result, the Single Judge dismissed the Respondent’s argument, since the decision rendered under ref. 20-00450 did not concern the payment due on 31 July 2020, which is the matter here at stake.

10. Moreover, the Single Judge observed that the Respondent did not fundamentally deny that said amount (in principle, USD 1,350,000) was outstanding, and thus, could only assume that it remained due.

11. However, in relation to the final due amount, the Single Judge noted that in accordance with the Regulations and under art. 2.3 of the Transfer Agreement, 5% of said amount shall be deducted in order to pay solidarity contribution to the player’s former clubs.

12. As a result, the Single Judge established that the final due amount would correspond to USD 1,282,500, i.e. USD 1,350,000 – 5% = USD 1,350,000 – USD 67,500.

13. Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge of the PSC established that the Respondent has to pay to the Claimant, the total outstanding amount of USD 1,282,500, as contractually agreed.

14. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Single Judge of the PSC decided to award 5% interest p.a. over said amount as from the due date.

15. In addition, and concerning the procedural costs, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered.

16. Furthermore, taking into account the previous considerations, the Single Judge of the PSC 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.

17. In this regard, the Single Judge of the PSC 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.

18. Therefore, bearing in mind the above, the Single Judge of the PSC 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.

19. Finally, the Single Judge of the PSC 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.

III. Decision of the Single Judge of the PSC

1. The claim of the Claimant, CD Atlético Huila, is partially accepted.

2. The Respondent, Genoa Cricket & Football Club, has to pay to the Claimant, the outstanding of USD 1,282,500, plus 5% interest p.a. as from 1 August 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant 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 with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. 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 of the relevant bank details to the Respondent, the following consequences shall arise:

The Respondent 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).

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.

7. This decision is rendered without costs.

For the Single Judge of the PSC:

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

www.fifa.com | legal.fifa.com | psdfifa@fifa.org | T: +41 (0)43 222 7777