F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – overdue payables / debiti scaduti – (2017-2018) – fifa.com – atto non ufficiale – Decision 6 March 2018

Decision of the Single Judge

of the Players’ Status Committee

passed on 6 March 2018,

by

Mr Geoff Thompson (England)

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 of Country B, Club A (hereinafter: the Claimant), and the club of Country D, Club C (hereinafter: the Respondent), signed a loan agreement regarding the transfer of the player, Player E (hereinafter: the player), on a loan basis from the Claimant to the Respondent, in accordance with which the Respondent undertook to pay to the Claimant, inter alia, EUR 300,000 net upon receipt of the player’s International Transfer Certificate (ITC) and, in any case, not later than 30 July 2016.

2. On 31 March 2017, the Claimant and the Respondent agreed, inter alia, upon a rescheduling of the payment of the loan fee until 15 May 2017.

3. By correspondence dated 30 November 2017, the Claimant put the Respondent in default of payment of EUR 300,000, setting a 10 days’ time limit in order to remedy the default.

4. On 12 December 2017, and completed on 8 January 2018, 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 EUR 300,000 corresponding to the loan fee, plus interest of 5% p.a. as from 16 May 2017 and that the Respondent be ordered to pay the procedural costs, “including the reimbursement of the advance of costs paid by [the Claimant] as well as other costs paid by [the Claimant], to be quantified precisely at a later stage, or any other amount the Players’ Status Committee should consider equitable”.

5. In reply to the claim, the Respondent stated that the loan of the player from the Claimant to the Respondent against a loan fee of EUR 300,000 was linked to the loan of the player, Player F, from the Respondent to the Claimant, which contained a purchase option against the payment of EUR 900,000.

6. In this respect, the Respondent held that, as a result of Player F’s injury while registered with the Claimant, on 2 October 2017 it addressed a correspondence to the Claimant, by means of which it informed that “until we will not reach an agreement [regarding the damages allegedly payable to the Respondent in connection with the apparent injury of Player F] we are not able to fulfil the obligations regarding the transfer fee of [the player]. The damages of [the Respondent] by far exceed your claims connected with transfer of [the player]”.

7. In this context, the Respondent referred to Swiss law and argued that in the event that two parties owe each other sums of money, each party may set off its debt, provided that both sums have fallen due, and that the debtor may assert his right to set-off even if the countervailing claim is contested.

8. Furthermore, the Respondent submitted a copy of invoices allegedly related to the travel, accommodation and medical expenses of the Player F in the total amount of EUR 38,426.22 and requested the payment of EUR 638,426.22, i.e. EUR 900,000 – EUR 300,000 + EUR 38,436.22, plus 5% interest p.a. as of 30 days after the notification of the decision. Alternatively, the Respondent requested that the amount of EUR 38,426.22 be set off, that the interest in favour of the Claimant run as of 30 days of notification of the decision and that the Respondent be ordered to bear the costs of the proceedings.

9. In this respect, the Respondent already having presented a request in front of FIFA pertaining to the Player F, the Respondent was informed by FIFA that its request pertaining to the Player F, submitted in the present matter is dealt with separately, if need be.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ 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 12 December 2017. Consequently, the 2017 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is 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. 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition 2018) 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 2018), and considering that the present claim was lodged on 12 December 2017, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: 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 a loan agreement regarding the transfer of the Player E on a loan basis from the Claimant to the Respondent against the payment of EUR 300,000. Equally, the Single Judge noted that the Claimant and the Respondent agreed in writing upon a rescheduling of the payment of the loan fee until 15 May 2017.

6. The Single Judge further observed that the Claimant maintained that the Respondent has overdue payables towards it in the total amount of EUR 300,000, corresponding to the full loan fee.

7. In this context, the Single Judge took particular note of the fact that, on 30 November 2017, the Claimant put the Respondent in default of payment of the aforementioned amount of EUR 300,000, setting a 10-days’ time limit 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, does not deny that the amount of EUR 300,000 has not been paid to the Claimant and requested that said amount be set off against an alleged debt of the Claimant towards the Respondent in connection with alleged damages related to the apparent injury of the Player F during his registration on a loan basis with the Claimant.

10. The Single Judge, however, deemed that such argument raised by the Respondent cannot be considered a valid reason for non-payment of the monies claimed by the Claimant, in other words, the arguments 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 the total amount of EUR 300,000 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 EUR 300,000.

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. on the amount of EUR 300,000 as from 16 May 2017 until the date of effective payment.

16. Moreover, the Single Judge decided to reject the Claimant’s claim pertaining to “other costs” in accordance with art. 18 par. 4 of the Procedural Rules and the Players’ Status Committee’s respective longstanding jurisprudence in this regard.

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 by virtue of art. 12bis par. 4 of the Regulations he has competence to impose sanctions on the Respondent. Therefore, bearing in mind that the Respondent duly 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 on the Respondent 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 claimed amount can entirely be attributed to the Respondent, 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 EUR 300,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. Considering that the case at hand did not compose any complex factual or legal issues, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000 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, Club A, is partially accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, overdue payables in the amount of EUR 300,000, plus 5% interest p.a. as from 16 May 2017 until the date of effective payment.

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

4. Any further claim lodged by the Claimant is rejected.

5. A warning is imposed on the Respondent.

6. The final amount of costs of the proceedings of CHF 20,000 is to be paid by the Respondent, within 30 days as from the notification of the present decision, as follows:

a) The amount of CHF 5,000 by the Respondent to the Claimant.

b) The amount of CHF 15,000 to FIFA to the following bank account with reference to case no. XXX:

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.a) 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 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