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 20 December 2017

Decision of the Bureau

of the Players’ Status Committee

passed by way of circulars on 20 December 2017,

in the following composition:

Raymond Hack (South Africa), Chairman

Geoff Thompson (England), member

Anna Peniche (Mexico), 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 21 July 2016, the Club of Country B, Club A (hereinafter: Claimant), and the Club of Country D, Club C (hereinafter: Respondent), signed a transfer agreement regarding the transfer of the player, Player E (hereinafter: player) from the Claimant to the Respondent.

2. On 13 March 2017, the Claimant and the Respondent signed a settlement agreement, in accordance with which the Respondent undertook to pay to the Claimant the second instalment of the transfer compensation in the amount of EUR 500,000 in two equal instalments of EUR 250,000 on 16 March 2017 and on 28 April 2017, respectively.

3. By correspondence dated 30 August 2017, the Claimant put the Respondent in default of payment of the amount of EUR 250,000, setting a 10 days’ time limit in order to remedy the default.

4. On 25 October 2017, the Claimant lodged a claim against the Respondent in front of FIFA asking that the Respondent be ordered to pay overdue payables in the amount of EUR 250,000, corresponding to the second instalment agreed upon in the settlement agreement.

5. The Claimant further asks to be awarded interest of 5% p.a. as of 29 April 2017 and that the Respondent be ordered to reimburse the advance of costs the Claimant paid at the beginning of the present proceedings.

6. The Respondent submitted its response to the claim after expiry of the time limit set by FIFA to respond.

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

1. First of all, the Bureau of the Players’ Status Committee (hereinafter: 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 25 October 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 Bureau referred to art. 3 paras 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 paras 1 and 4 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 25 October 2017, the 2016 edition of said regulations (hereinafter: 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 he considered pertinent for the assessment of the matter at hand.

5. Having said this, the Bureau acknowledged that the Claimant and the Respondent signed a transfer agreement regarding the transfer of the player from the Claimant to the Respondent. Equally, the Bureau noted that the Claimant and the Respondent subsequently entered into a settlement agreement, in accordance with which the Claimant was entitled to receive from the Respondent, inter alia, the total amount of EUR 500,000 in two equal instalments of EUR 250,000 on 16 March 2017 and on 28 April 2017, respectively.

6. The Bureau further acknowledged that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent has overdue payables towards it in the total amount of EUR 250,000 corresponding to the second instalment under the settlement agreement.

7. In this context, the Bureau took particular note of the fact that, on 30 August 2017, the Claimant put the Respondent in default of payment of the aforementioned amount, setting a 10 days’ time limit 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, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 30 November 2017. In fact, the reply of the Respondent was only received on 1 December 2017. As a result, bearing in mind the Players’ Status Committee’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Bureau decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, it shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, the statements and documents presented by the Claimant.

10. Having said this, the Bureau acknowledged that, in accordance with the settlement agreement provided by the Claimant, the Respondent was obliged to pay to the Claimant the amount of EUR 500,000 in two equal instalments of EUR 250,000 on 16 March 2017 and on 28 April 2017, respectively.

11. Taking into account the documentation presented by the Claimant in support of its petition, the Bureau concluded that the Claimant had substantiated its claim pertaining to overdue payables with sufficient documentary evidence.

12. On account of the aforementioned considerations, the Bureau established that the Respondent failed to remit total amount of EUR 250,000 payable to the Claimant.

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

14. 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 EUR 250,000.

15. 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. on the amount of EUR 250,000 as from 29 April 2017 until the date of effective payment.

16. In continuation, taking into account the consideration under number II./13. 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.

17. The Bureau established that in virtue of art. 12bis par. 4 of the Regulations it has competence to impose sanctions on the Respondent. In this context, the Bureau highlighted that, on 2 June 2016 and on 13 September 2016, 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 a warning and a fine had been imposed on the Respondent by the Single Judge of the Players’ Status Committee. Consequently, the Bureau established that the Respondent has delayed a due payment for more than 30 days without a prima facie contractual basis and without having answered to the claim for the third time.

18. Moreover, 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.

19. Bearing in mind the considerations under numbers II./17. and II./18. 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.

20. 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 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 amount as agreed in the settlement agreement can entirely be attributed to the Respondent and that the claim of the Claimant has been fully accepted, 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 EUR 250,000. Consequently, the Bureau concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did not reply to the claim of the Claimant, the Bureau determined the costs of the current proceedings to the amount of CHF 25,000 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 Bureau of the Players’ Status Committee

1. The claim of the Claimant, Club A, is 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 250,000, plus 5% interest p.a. as from 29 April 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. The final amount of costs of the proceedings of CHF 25,000 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 20,000 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

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points III./2. and III./ 4.a) above are to be made and to notify the Bureau of every payment received.

6. In the event that the amount due to the Claimant is not paid by the Respondent within 30 days as from the date of notification of this decision, the Respondent 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.

*****

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 Bureau of the

Players’ Status Committee:

Omar Ongaro

Football Regulatory Director

Encl. CAS directives