F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2016-2017) – fifa.com – atto non ufficiale – Decision 19 May 2017

Decision of the

Bureau of the Players’ Status Committee

passed by way of circulars on 19 May 2017,

in the following composition:

Raymond Hack (South Africa), Chairman

Mario Gallavotti (Italy), member

Wouter Lambrecht (Belgium), member

on the claim presented by the club,

Club A, Country B,

as Claimant

against the club,

Club C, Country D,

as Respondent

regarding a contractual dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 27 July 2016, the Club of Country B, Club A (hereinafter: “the Claimant”), and the Club of Country D, Club C (hereinafter: “the Respondent”) signed an agreement (hereinafter: “the agreement”) regarding the temporary transfer of the Player E (hereinafter: “the player”) from the Claimant to the Respondent.

2. In accordance with the agreement, the Respondent undertook to pay to the Claimant inter alia the amount of USD 30,000 “no later than 31 August 2016”.

3. By correspondence and fax dated 20 January 2017, the Claimant put the Respondent in default of payment of USD 30,000 setting a time limit expiring on 31 January 2017, in order to remedy the default.

4. On 3 February 2017, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay to it overdue payables in the amount of USD 30,000 corresponding to the entire loan fee.

5. The Claimant further asked to be awarded interest of 5% p.a. over the outstanding amount from the due date, i.e. 31 August 2016, and until the date of effective payment, as well as, that the Respondent be ordered to pay the relevant procedural costs.

6. In reply to the claim, the Respondent held that its intention was to settle this matter in amicable way and proposed the Claimant to pay the entire outstanding amount by no later than 30 March 2017.

7. On 2 May 2017, the Claimant informed FIFA that the Respondent failed to pay the outstanding amount.

II. Considerations of the Bureau of the Player’s Status Committee

1. First of all, the Bureau of the Player’s Status Committee (hereinafter: “the Bureau”) analysed whether it was competent to deal with the matter at hand. In this respect, it took note that the present matter was submitted to FIFA on 3 February 2017. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Bureau referred to art. 3 par. 1 and par. 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and par. 3 in conjunction with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (edition 2016), it is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations.

3. Furthermore, the Bureau analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 3 February 2017, the 2016 edition of said regulations (hereinafter: “the Regulations”) is applicable to the matter at hand as to the substance.

4. The competence of the Bureau and the applicable regulations having been established, the Bureau entered into the substance of the matter. In this respect, the Bureau started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Bureau emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Having said this, the Bureau acknowledged that the Claimant and the Respondent signed the agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount USD 30,000, payable in one sole remittance at the latest on 31 August 2016.

6. The Bureau further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the latter has overdue payables towards it in the total amount of USD 30,000 due on 31 August 2016.

7. In this context, the Bureau took particular note of the fact that, on 20 January 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a time limit expiring on 31 January 2017 in order to remedy the default.

8. Consequently, the Bureau concluded that the Claimant had duly proceeded in accordance with art. 12bis par. 3 of the Regulations, which stipulates that the creditor (player or club) must have put the debtor club in default in writing and have granted a deadline of at least ten days for the debtor club to comply with its financial obligations.

9. Subsequently, the Bureau took into account that the Respondent, for its part, presented its response to the claim of the Claimant, expressing its alleged intention to settle this matter in an amicable way by no later than 30 March 2017. Nevertheless, the Bureau pointed out that on 2 May 2017, the Claimant informed FIFA that it had not received any payment from the Respondent.

10. The Bureau considered that it follows from the above that the Respondent explicitly recognised the Claimant´s claim. In other words, that it has to fulfil its contractual obligations towards the Claimant.

11. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit to the Claimant the total amount of USD 30,000.

12. In addition, the Bureau established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

13. Consequently, the Bureau decided that, in accordance with the general legal principle of pacta sunt servanda, the Respondent is liable to pay to the Claimant overdue payables in the total amount of USD 30,000.

14. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Bureau decided that the Respondent must pay to the Claimant interest of 5% p.a. over the amount of USD 30,000 as from 1 September 2016 until the date of effective payment.

15. In continuation, taking into account the consideration under number II./12 above, the Bureau 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.

16. The Bureau established that by virtue of the aforementioned article, it has competence to impose sanctions on the Respondent. In this context, the Bureau highlighted that on 21 August 2015, 20 June 2016 and 20 February 2017, the Respondent had already been found to have delayed a due payment for more than 30 days without a prima facie contractual basis, as a result of which, fines were imposed on the Respondent by the Single Judge of the Players’ Status Committee. Consequently, the Bureau established that, for the fourth time, the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis.

17. Along these lines, the Bureau referred to art. 12bis par. 6 of the Regulations, which establishes that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty.

18. Therefore, bearing in mind the considerations under numbers II./15., II./16. and II./17. above, the Bureau decided that in the event that the Respondent does not pay the amount due to the Claimant within the 30 days following the notification of the present decision, a ban from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision shall become effective on the Respondent in accordance with art. 12bis par. 4 lit. d) of the Regulations.

19. Finally, the Bureau referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in proceedings before the Players’ Status Committee, costs in the maximum amount of CHF 25,000 are levied and which states that 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.

20. Taking into account that the responsibility of the failure to comply with the payment of the amounts as agreed in the agreement can entirely be attributed to the Respondent and that the Claimant has been the successful party, the Bureau concluded that the Respondent has to bear the costs of the current proceedings before FIFA. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Bureau held that the amount to be taken into consideration in the present proceedings is USD 30,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000.

21. Considering the specific circumstances of the present matter, in particular the stance of the parties, the Bureau determined the costs of the current proceedings in the amount of CHF 5,000 which has to be paid by the Respondent in its entirety.

III. Decision of the Bureau of the Players’ Status Committee

1. The claim of the Claimant, Club A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, Club A, within 30 days as from the date of notification of this decision, overdue payables in the amount of USD 30,000, plus a 5% annual interest from 1 September 2016 until the date of effective payment.

3. If the aforementioned sum, plus interest, is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claims lodged by the Claimant, Club A, are rejected.

5. In the event that the amount due to the Claimant, Club A, is not paid by the Respondent, Club C, within 30 days as from the date of notification of this decision, the Respondent, Club C, shall be banned from registering any new players, either nationally or internationally, for the next entire registration period following the notification of the present decision.

6. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent, Club C, within 30 days as from the notification of the present decision, as follows:

6.1 The amount of CHF 1,000 has to be paid to the Claimant, Club A.

6.2 The amount of CHF 4,000 has to be paid to FIFA to the following bank account:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 6.1 are to be made and to notify the Players’ Status Committee of every payment received.

*****

Note relating to the motivated decision (legal remedy):

According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives).

The full address and contact numbers of the CAS are the following:

Court of Arbitration for Sport

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Bureau of the

Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl: CAS directives