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 02 November 2020

Players ' Status Committee

Date: 02 November

2020

Claimant: Málaga FC (without enclosures)

administration@malagacf.com

gerencia@malagacf.es

albertodiaz@malagacf.es

Respondent: Club Atlético Banfield

carloscarpaneto@gmail.com.ar

talamati@hotmail.com

carloscarpaneto@gmail.com

Fédération Internationale de Football Association

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

Tel: +41 43/222 7777 psdfifa@fifa.org

Copy for information:

Real Federación Española de Fútbol

(without enclosures)

ctilicencias@rfef.es

Asociación del Fútbol Argentino

gerenciajugadores@afa.org.ar

NOTIFICATION OF THE GROUNDS OF THE DECISION

CONTRACTUAL DISPUTE CONCERNING THE PLAYER EMANUEL RODRIGO CECCHINI

Ref. Nr.

20-00380/lsk

Dear Sirs,

Please find attached the grounds of the decision passed in the aforementioned matter.

We kindly invite you to take note of this decision.

We remain at your disposal.

Yours faithfully,

FIFA

Erika Montemor Ferreira

Head of Players’ Status

REF 20-00380

Page 2 of 10

Decision of the

Single Judge of the Players' Status Committee

passed in Zurich, Switzerland, on 30 June 2020,

regarding a contractual dispute concerning the player Emanuel Rodrigo Cecchini

BY:

Johan van Gaalen ( South Africa), Single Judge of the PSC

CLAIMANT:

MÁLAGA CF, Spain

RESPONDENT:

CLUB ATLÉTICO BANFIELD, Argentina

I. FACTS OF THE CASE

1) On 22 June 2018, the parties concluded a loan agreement in connection with the transfer of the player Rodrigo Emanuel Cecchini from Malaga (the Claimant) to Banfield (the Respondent) from 1 July 2018 until 30 June 2019.

2) The second clause of the loan agreement stipulated that the Respondent should pay to the Claimant a total amount of EUR 100,000 in two equal instalments of EUR 50,000, on 15 October 2018 and on 15 December 2018 respectively. Moreover, said clause stipulated that in case of delay in payments an annual interest of 5% p.a. will apply automatically.

3) On 19 December 2019, the parties signed a new agreement renegotiating the payment of the aforementioed loan fee.

4) The first clause of the new agreement established that the Respondent should pay to the Claimant the amount of EUR 100,000 in a single payment by no later than 25 January 2020 plus the interest estipulated in the second clause of the loan agreement, as from the due dates until effective payment.

5) Moreover, the second clause of the new agreement established that in case the Respondent would not pay the amount of EUR 100,000 on time, an annual interest of 5% will apply over the oustanding amount and penalty. The original version in Spanish states: “…en caso que para el vencimiento pactado (25/01/2020 a las 24 horas de Argentina) no se encuentren depositados los importes comprometidos en la cláusula PRIMERA del presente, BANFIELD adedudará tambien el interés por mora, que será del cinco por ciento (5%) anual sobre las sumas adeudadas en concepto de Precio o Penalidad”.

6) The third clause of the new agrement established a penalty amounting to EUR 10,000 in case the Respondent does not fullifl its obligations on time. The original version in Spanish states: “TERCERO.- PENALIDAD. Adicionalmente, en caso de mora, las partes pactan que BANFIELD debera abonar a MALAGA CF la suma neta de Euros Diez Mil (E 10.000.-) en concepto de penalidad por incumplimiento. Ambas partes acuerdan que la penalidad y los intereses pactados son razonables y han sido acordados tras un proceso de negociación de buena fe entre las partes”.

II. PROCEEDINGS BEFORE FIFA

A. Position of the Claimant

7) On 27 February 2020, the Claimant lodged the present claim against the Respondent requesting the payment of the total amount of EUR 115,993.15 composed as follows:

- EUR 100,000 as outstanding loan fee;

- EUR 3,205.48 “for the interests acknowledged and agreed in the second contract [i.e. the new agreement] dated 23 December 2019. Those interests comprise the period from 15 October to

25 January 2020 (date established by both parties in said second agreement [i.e. the new agreement] as the deadline to pay) corresponding to the first instalment agreed in the loan transfer agreement”.

- EUR 2,787.67 “for the interests acknowledged and agreed in the second contract dated 23 December 2019. Those interests comprise the period from 15 December 2018 to 25 January 2020 (date established by both parties in said second agreement [i.e. the new agreement] as the deadline to pay) corresponding to the second instalment agreed in the loan transfer agreement”.

- EUR 10,000 plus interests for the penalty agreed in the new agreement;

- plus interests as of the due dates.

8) Moreover, the Claimant requested the amount of CHF 15,000 as legal costs.

9) The Claimant maintained that taking into account that the Respondent did not fulfil its obligations as agreed in the loan agreement, the parties renegotiated the terms and concluded the new agreement.

10) On 31 January 2020, the Claimant put the Respondent in default of payment of EUR 116,182.81 corresponding to the loan fee, penalty and interests, setting a 10-day deadline in order to remedy the default.

11) On 3 and 7 February 2020, the Claimant sent to the Respondent two reminders warning that in case the latter would not reply, a claim would be lodged in front of FIFA.

B. Position of the Respondent

12) In its reply to the claim, the Respondent first argued that it was not correctly put in default as per art. 12bis and therefore it shall only reply as to the substance of claim once this has been correctly done.

13) Furthermore, the Respondent deems that the penalty of EUR 10,000 is excessive and should therefore be disregarded or alternatively reduced.

14) Finally, it claims that the procedural costs requested by the Claimant are excessive and should also be rejected.

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

A. Competence

15) The Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) first analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 27 February 2020 and decided on 30 June 2020. Consequently, the June 2020 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

16) 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 3 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, he shall adjudicate on a contractual dispute between two clubs belonging to different associations.

17) As a consequence, the Single Judge is the competent body to decide on the present litigation involving a Spanish club and an Argentinean club.

B. Applicable legal framework

18) The Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, it 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 present claim was lodged on 27 February 2020, the January 2020 edition of said regulations is applicable to the matter at hand as to the substance.

19) 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. The Single Judge, however, emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

C. Burden of proof

20) 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.

D. Merits of the dispute

I. Main legal discussion

21) The Single Judge wished to recall in this respect the main elements that gave rise to the

present dispute.

22) In this respect, the Single Judge noted that it remained undisputed by the parties that on 22 June 2018 they had signed a loan agreement for the player Rodrigo Emanuel Cecchini establishing a loan fee of EUR 100,000 payable in 2 instalments. It also remained undisputed that on 19 December 2019 the parties signed a new agreement renegotiating the payment of the aforementioned loan fee, and establishing the payment of a penalty fee and of interest in case of late payment.

23) While the Respondent acknowledges the non-payment of the loan fee to the Claimant, it deems that the penalty fee is disproportionate and should be reduced or rejected, as well as the Claimant’s request for procedural costs. The Respondent stated that further comments on the substance would only be made after the petition of the Claimant was compliant with the formal pre-requisites of art. 12bis of the Regulations.

24) In view of the foregoing, the Single Judge went on to analyse the objections raised by the Respondent regarding the claim of the Claimant.

II. Considerations

25) First of all, the Single Judge noted from the Respondent’s reply that the latter does not contest the main debt of EUR 100,000, corresponding to the loan fee agreed by the parties in the transfer agreement and confirmed in the new agreement.

26) Hence, considering the content of the first and the second transfer agreement as well as taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith and bearing in mind that it is undisputed that the loan fee of EUR 100,000 has not yet been paid by the Respondent to the Claimant, the Single Judge first resolved that the Respondent, in order to fulfil its obligations established in the documents in question has to pay to the Claimant the outstanding amount of EUR 100,000.

27) Subsequently, the Single Judge addressed the Respondent’s argument that the penalty few of EUR 10,000 stipulated in the second agreement is disproportionate and should be rejected or reduced. In this respect, the Single Judge noted that such penalty represents 10% of the main debt and is therefore considered as proportionate as per the PSC’s well-established jurisprudence. Thus, the Single Judge conclude that the Respondent’s arguments in this respect cannot be upheld and the penalty of EUR 10,000 is due.

28) For the sake of completeness, the Single Judge making reference to his longstanding jurisprudence pointed out that no interest shall apply on the aforementioned penalty.

29) As to the Claimant’s request for interest on the amount of EUR 100,000, the Single Judge noted that the wording of the first and the second agreement is somewhat confusing. While analyzing in detail the content of the relevant clauses, the Single Judge concluded that such clauses combined provide for the following scheme, considering in particular the wording of art. 1 and 2 of the second agreement:

- 5% p.a. on EUR 50,000 as from 16 October 2018 (due date as per first agreement) until 24 January 2020 (day preceedig the renegotiated due date as per the second agreement);

- 5% p.a. on EUR 50,000 as from 16 December 2018 (due date as per first agreement) until 24 January 2020 (day preceedig the renegotiated due date as per the second agreement);

- 5% p.a. on EUR 100,000 as from 25 January 2020 (renegotiated due date as per the second agreement) until the effective date of payment.

30) The Single Judge noted that the aforementioned in fact corresponds to stipulating that interest is due as from the due dates until the effective date of payment, as follows:

- 5% p.a. on EUR 50,000 as from 16 October 2018 until the effective date of payment;

- 5% p.a. on EUR 50,000 as from 16 December 2018 until the effective date of payment;

31) Bearing in mind the foregoing analysis of the interest clauses in the first and in the second agreement, the Single Judge noted that the Claimant claims interest over interest, which cannot be accepted. Thus, the Single Judge decided that interest shall be granted over the amount of EUR 100,000 as explained in the paragraph above, i.e. as from the due date of each instalment until the effective date of payment.

32) Finally and for the sake of completeness of his analysis, the Single Judge deemed that the Respondent’s argument that the Claimant’s claim did not comply with the formal prerequisites of art. 12bis of the Regulations cannot be taken into account in order to deem the petition incomplete. In fact, all the formal prerequisites of art. 9 of the Procedural Rules for regular proceedings are met and the parties’ right to be heard was duly respected.

33) Therefore, the Single Judge concluded that as per the principle of pacta sunt servanda the Respondent has to pay to the Claimant a penalty of EUR 10,000 without interest, plus the outstanding loan fee of EUR 100,000 plus interest as from the due dates until the date of effective payment.

III. Conclusion

34) As a result of the aforementioned, the Single Judge decided to partially accepted the claim of the Claimant and award the following amounts:

a) EUR 100,000 as outstanding remuneration plus 5% interest p.a. as follows:

i) 5% p.a. on EUR 50,000 as from 16 October 2018 until the date of effective payment;

ii) 5% p.a. on EUR 50,000 as from 16 December 2018 until the date of effective payment;

b) EUR 10,000 as penalty.

IV. Legal Consequences

35) Subsequently, taking into account the previous considerations, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his 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.

36) 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.

37) 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.

V. Costs

38) Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party.

39) In this respect, the Single Judge reiterated that the claim of the Claimant is accepted to a considerable extent and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Respondent should bear the costs of the current proceedings in front of FIFA.

40) Furthermore the Single Judge pointed out that according to art. 18 par. 1 ii) of the June 2020 edition of the Procedural Rules, for any claim or counter-claim lodged prior to 10 June 2020 which has yet to be decided at the time of this temporary amendment, the maximum amount of procedural costs levied shall be equivalent to any advance of costs paid.

41) In conclusion, the Single Judge determined that the amount of CHF 3,000 has to be paid by the Respondent to cover the costs of the present proceedings.

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

1. The claim of the Claimant, Málaga CF, is partially accepted.

2. The Respondent, Club Atlético Banfield, has to pay to the Claimant, the following amounts:

- EUR 100,000 as outstanding remuneration plus 5% interest p.a. as follows:

o 5% p.a. on EUR 50,000 as from 16 October 2018 until the date of effective payment;

o 5% p.a. on EUR 50,000 as from 16 December 2018 until the date of effective payment;

- EUR 10,000 as penalty.

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:

 1.

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). 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.

7. The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the Respondent to FIFA (cf. note relating to the payment of the procedural costs below).

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 (cf. CAS Directives at Legal.FIFA.com).

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