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 9 June 2017

Decision of the Single Judge

of the Players’ Status Committee

passed on 9 June 2017

by

Mr Raymond Hack (South Africa)

Single Judge of the Players’ Status Committee,

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

2. In accordance with the agreement, the Claimant was entitled to receive from the Respondent, inter alia, the amount USD 4,384,087, i.e. USD 3,476,082 as transfer amount plus USD 908,005 as transfer expenses, payable as follows:

a. USD 1,976,082 on 8 July 2016;

b. USD 908,005 on 8 July 2016 and

c. USD 1,500,000 on 5 December 2016.

3. Art. 10 of the agreement stipulated: “Should any payment owing to Club A [i.e. the Claimant] by Club C [i.e. the Respondent] under this Agreement not be made on the date such is due then Club A [i.e. the Claimant] shall be entitled to charge interest on all outstanding sums, owing at annual rate of 10% (ten per cent) until such a time as the outstanding sums are received by Club A [i.e. the Claimant] in full”.

4. By correspondence dated 16 January 2017, the Claimant put the Respondent in default of payment of the last instalment (USD 1,500,000) plus interest as contractually agreed in order to remedy the default.

5. On 27 March 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 1,500,000 corresponding to the last instalment of the agreement.

6. The Claimant further asked to be awarded interest of 10% p.a. over the outstanding amount from 5 December 2016 and until the date of effective payment.

7. In reply to the claim, the Respondent argued that “the default interest claimed by the Claimant is not clear, that is to say, the latter does not clarify whether the referenced percentage shall accrue on day, month or year basis”.

8. Moreover, the Respondent contested the interest at an annual rate of 10% requested by the Claimant alleging that it was unfair and groundless. The Respondent further argued, that an interest at a rate of 5% per annum is proportionate and that it shall never accrue before the date in which the PSC will pass the relevant decision.

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 27 March 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 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 27 March 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 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 Respondent undertook to pay to the Claimant inter alia the following amounts: USD 908,005 on 8 July 2016; USD 1,976,082 on 8 July 2016 and USD 1,500,000 on 5 December 2016.

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 1,500,000, corresponding to the last instalment due on 5 December 2016.

7. In this context, the Single Judge took particular note of the fact that, on 16 January 2017, 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 not contesting the alleged outstanding amount but rejecting the interest at an annual rate of 10% claimed by the Claimant alleging that it was unfair, without legal basis and vague and arguing that an interest at a rate of 5% per annum would be proportionate and that it shall applied as from the date of the relevant decision.

10. On account of the aforementioned considerations, the Single Judge established that it is undisputed the Respondent failed to remit the total amount of USD 1,500,000 payable to the Claimant. As such, the Single Judge established that the Respondent had delayed a due payment for more than 30 days without a prima facie contractual basis.

11. With regard to the interest requested by the Claimant (i.e. 10% p.a.), the Single Judge pointed out that it was contractually agreed by the parties clearly and specifically. In this respect, the Single Judge outlined that an interest of 10% per annum is neither unreasonable nor disproportionate and that it should apply from the day following the due date of the relevant payment, i.e. 6 December 2016.

12. In view of the above, 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.

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

14. On account of all the above, 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 1,500,000 as well as an interest of 10% p.a. over the amount of USD 1,500,000 as from 6 December 2016 until the date of effective payment.

15. In continuation, taking into account the consideration under number II./10 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.

16. 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.

17. 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.

18. 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.

19. 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 1,500,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

20. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings in the amount of CHF 15,000 and which 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, 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 1,500,000, plus a 10% annual interest from 6 December 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. A warning is imposed on the Respondent, Club C.

6. The final costs of the proceedings in the amount of CHF 15,000 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 5,000 has to be paid to the Claimant, Club A.

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

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 Single Judge

of the Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives