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 13 September 2016

Decision of the Single Judge

of the Players’ Status Committee

passed on 13 September 2016

by

Mr Johan van Gaalen (South Africa)

Single Judge of the Players’ Status Committee,

on the claim presented by the club,

A, country A

as “Claimant”

against the club,

B, country B

represented by Mr xxxxx

as “Respondent”

regarding a contractual dispute

between the parties in connection with overdue payables

I. Facts of the case

1. On 2 May 2014, the club from country A, A (hereinafter: “the Claimant”), and the club from country B, B (hereinafter: the Respondent”) signed an agreement (hereinafter: “the agreement”) regarding the transfer of the player, C (hereinafter: “the player”) from the Claimant to the Respondent.

2. In accordance with the agreement, the Respondent undertook to pay to the Claimant the total amount of USD 2,450,000, payable in three instalments as follows:

a. USD 650,000 until 22 May 2014;

b. USD 1,000,000 until seven days after the issuance of the International Transfer Certificate and

c. USD 800,000 on 16 February 2015.

3. On 1 August 2016, the Claimant put the Respondent in default of payment of the last instalment for a sum of USD 800,000 setting a time limit of ten days in order to remedy the default.

4. On 23 June 2016, the Claimant lodged a claim against the Respondent in front of FIFA claiming to have already received from the latter the first and second instalment in accordance with the agreement amounting to USD 1,150,000 and asking that the Respondent be ordered to pay overdue payables in the amount of USD 800,000.

5. The Claimant further asked to be awarded “interests established by the Players´ Status Committee as from the due date, i.e. 16 February 2015 until the date of effective payment“ as well as legal and procedural costs.

6. In reply to the claim, the Respondent held that it would appreciate if the Claimant, who is aware of the current financial situation of the Respondent, could present to them a proposal in order to settle the present matter amicably.

II. Considerations of the Single Judge of the Player’s Status Committee

1. First of all, the Single Judge of the Player’s Status Committee (hereinafter: “the Single Judge”) 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 23 June 2016. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. 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. 3 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition 2016) he is competent to deal with the present matter, which concerns a dispute between two clubs affiliated to different associations.

3. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of Players (edition 2016), and considering that the present claim was lodged on 23 June 2016, 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 Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. However, the Single Judge 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.

5. Having said this, the Single Judge acknowledged that the Claimant and the Respondent signed an agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount USD 2,450,000, payable in three instalments as follows:

a. USD 650,000 until 22 May 2014;

b. USD 1,000,000 until seven days after the issuance of the International Transfer Certificate and

c. USD 800,000 on 16 February 2015.

6. The Single Judge 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 800,000, corresponding to the last instalment due on 16 February 2015.

7. In this context, the Single Judge took particular note of the fact that, on 1 August 2016, the Claimant put the Respondent in default of payment of the aforementioned amounts, setting a time limit of ten days in order to remedy the default.

8. Consequently, the Single Judge 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 Single Judge took into account that the Respondent, for its part, present its response to the claim of the Claimant, alleging financial difficulties and requesting the latter to offer a payment plan.

10. In this regard, the Single Judge considered that the arguments raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the reasons brought forward by the Respondent in its defence do not exempt the Respondent from its obligation to fulfil its contractual obligations towards the Claimant.

11. Consequently, the Single Judge decided to reject the argumentation put forward by the Respondent in its defence.

12. On account of the aforementioned considerations, the Single Judge established that the Respondent failed to remit total amount of USD 800,000 payable to the Claimant.

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

14. Consequently, the Single Judge 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 800,000.

15. In addition, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Single Judge decided that the Respondent must pay to the Claimant interest of 5% p.a. over the amount of USD 800,000 as from 17 February 2015 until the date of effective payment.

16. As to the Claimant’s request for legal costs, the Single Judge rejected such request in accordance with art. 18 par. 4 of the Procedural Rules, which stipulates that no procedural compensation shall be awarded in proceedings in front of FIFA’s decision-making bodies.

17. In continuation, taking into account the consideration under number II./13 above, the Single Judge 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.

18. The Single Judge established that in virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Bearing in mind that the Respondent replied to the claim of the Claimant and in the absence of the circumstance of repeated offence, the Single Judge decided to impose a warning in accordance with art. 12bis par. 4 lit. a) of the Regulations.

19. In this connection, the Single Judge wished to highlight that a repeated offence will be considered as an aggravating circumstance and lead to more severe penalty in accordance with art. 12bis par. 6 of the Regulations.

20. Finally, 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 proceedings before the Players’ Status Committee including its Single Judge, 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.

21. 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 Single Judge 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 Single Judge held that the amount to be taken into consideration in the present proceedings is USD 800,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

III. Decision of the Single Judge of the Players’ Status Committee

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

2. The Respondent, B, has to pay to the Claimant, A, within 30 days as from the date of notification of this decision, overdue payables in the amount of USD 800,000, plus a 5% annual interest from 17 February 2015 until the date of effective payment.

3. If the aforementioned sums, plus interest, are 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 are rejected.

5. A warning is imposed on the Respondent.

6. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

6.1 The amount of CHF 5,000 has to be paid to the Claimant.

6.2 The amount of CHF 10,000 has to be paid to FIFA to the following bank account with reference to case nr.:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7. The Claimant is directed to inform the Respondent 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 article 67 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 Single Judge

of the Players’ Status Committee:

Marco Villiger

Deputy Secretary General

Encl: CAS directives