F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – labour disputes / controversie di lavoro (2019-2020) – fifa.com – atto non ufficiale – Decision 14 February 2020
Decision of the Single Judge
of the Players’ Status Committee
passed on 14 February 2020,
by
Roy Vermeer (The Netherlands)
Single Judge of the Players’ Status Committee,
on the claim presented by the club
FC Zenit, Russia
as “Claimant”
against the club
Fenerbahçe SK, Turkey
as “Respondent”
regarding a contractual dispute arisen between the parties
and relating to the player Giuliano Victor de Paula
Player Giuliano Victor de Paula
I. Facts of the case
1. On 11 August 2017, the Russian club, FC Zenit Club (hereinafter: the Claimant or Zenit) and
the Turkish club, Fenerbahçe SK (hereinafter: the Respondent or Fenerbahçe) concluded
transfer agreement for the player Giuliano Victor de Paula (hereinafter: player) from Zenit
to Fenerbahçe for the amount of EUR 7,000,000 payable as follows:
- EUR 5,000,000 on 15 August 2017;
- EUR 2,000,000 on 15 January 2018.
2. By means of clause 2.2 of the transfer agreement, the parties agreed that, “If Fenerbahçe
transfers the Player on temporary and/or definitive basis, once or more, or the Player (or a
third party) pays a buy-out amount, Fenerbahçe shall pay to FC Zenit 10% (Ten percent) of
the amount to be actually received by Fenerbahçe from those transfers. Fenerbahçe shall
make the payment hereunder to FC Zenit within 5 (Five) business days as of the date on
which Fenerbahçe effectively receives the transfer fee from a third club (or a buy-out
amount from the Player or a third party). In case of contingent payments, Fenerbahçe shall
make the payment hereunder to FC Zenit within 5 (five) business days as of the date on
which Fenerbahçe effectively receives a relevant payment from a third party”.
3. Moreover, pursuant to clause 6.2 of the transfer agreement, the parties further agreed that
“In case of delay of any payment hereunder for more than five (5) calendar days, Fenerbahçe
undertakes to pay FC Zenit a penalty of EUR 100,000 (One hundred thousand euro)
immediately at the request of FC Zenit. If the delay continues, from the 7th day of such delay
Fenerbahçe shall pay 12% interest per year for overdue payment immediately at request of
FC Zenit”.
4. Subsequently, on 23 August 2018, the player was transferred from Fenerbahçe to Al Nassr
(hereinafter: the third club or Al Nassr) for the amount of EUR 10,500,000 payable as follows:
- EUR 5,000,000 on or before 6 September 2018;
- EUR 3,500,000 on or before 28 February 2019;
- EUR 2,000,000 on or before 1 October 2019.
5. In accordance with clause 3 of the transfer agreement concluded between Fenerbahçe and
Al Nassr, it was agreed that “AL NASSR shall be responsible to pay an amount of EUR 150,000
(one hundred fifty thousand Euro) of the total amount of any solidarity contribution, and
FENERBAHÇE shall be responsible to pay the rest amount of any solidarity mechanism
contribution provided in FIFA Regulations on the Status and Transfer of Players (“RSTP”) in
this respect, as the solidarity contribution is 5% of the transfer fee (i.e. EUR 525,000 “five
hundred twenty thousand Euro”) Al Nassr shall be responsible to pay an amount of EUR
150,000 (one hundred fifty thousand Euro) and FENERBAHÇE shall pay an amount of EUR
375,000 (three hundred seventy five thousand Euro), the latter amount shall be deducted
from the first instalment of the transfer fee according to Item 2 of this agreement”.
6. On 28 August 2018, the Claimant put the Respondent in default, requesting the payment of
the 10% sell-on fee in accordance with clause 2.2 of the transfer agreement signed between
Player Giuliano Victor de Paula Zenit and Fenerbahçe. Having said this, the Claimant further requested the Respondent to
provide it with all the relevant information regarding “financial obligations of FC Al Nassr
toward Fenerbahçe” and the “payments’ schedule for performance of the [financial]
obligations”.
7. On 27 September 2018, the Claimant sent a reminder of the previous letter to the
Respondent providing a 10 days’ deadline to remedy the default.
8. In view of the non-payment of the 10% sell-on fee by the Respondent, the Claimant
maintained that clause 6.2 of the transfer agreement had been triggered.
9. On 17 October 2018, Zenit lodged a claim against Fenerbahçe requesting the following:
a) The payment of the 10% sell-on fee stipulated under clause 2.2. of the transfer
agreement;
b) EUR 100,000, corresponding to the penalty fee stipulated under clause 6.2 of the
transfer agreement;
c) 12% interest p.a. on the outstanding amount as from the 7th day of delay until the
date of effective payment, in accordance with clause 6.2 of the transfer agreement.
10. In its reply, the Respondent firstly emphasised that Al Nassr had deducted the payment of
solidarity contribution from the first instalment, i.e. EUR 5,000,000 (cf. point I.4. above), so
it paid to the Respondent the amount of EUR 4,624,890 on 11 September 2018. Having said
this, Fenerbahçe further maintained that it had fulfilled its financial obligations towards
Zenit by paying the latter the amount of EUR 462,489 on 28 September 2018. In support of
its allegations, the Respondent attached two untranslated documents:
a) An untranslated payment order dated 11 September 2018 allegedly made by the third
club in favour of the Respondent for an amount of EUR 4,624,890;
b) An untranslated payment order dated 28 September 2018 allegedly made by the
Respondent in favour of the Claimant for an amount of EUR 462,489.
11. Secondly, Fenerbahçe acknowledged its delay in paying the outstanding amount to the
Claimant, however, it pointed out that the penalty fee envisaged under clause 6.2 of the
transfer agreement is disproportionate and, thus, should be evaluated by the Players’ Status
Committee.
12. In continuation, the Respondent further argued that an interest rate of 12% p.a. “is also an
excessive claim in consideration to the applicable interest rate in Swiss Law”.
13. In its replica, the Claimant acknowledged having received the amount of EUR 462,489 from
the Respondent. In this context, the Claimant amended its claim requesting the following:
a) EUR 100,000, corresponding to the penalty fee stipulated under clause 6.2 of the
transfer agreement;
b) 12% interest p.a. on the outstanding amount as from the 7th day of delay until the
date of effective payment, in accordance with clause 6.2 of the transfer agreement.
Player Giuliano Victor de Paula
c) Furthermore, with regard to the untranslated documents provided by the Respondent, Zenit
argued that Fenerbahçe “failed to establish what amount it actually received from Al Nassr,
when the money was received, and when the payment to FC Zenit was made”.
d) The Claimant further sustained that the penalty fee of EUR 100,000 and the 12% interest
p.a. were not excessive nor disproportionate.
e) Despite being invited to do so, Fenerbahçe did not provide its final comments.
II. Considerations of the Single Judge of the Players’ Status Committee
1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to
as: the Single Judge) analysed whether he was competent to deal with the matter at hand.
In this respect, he referred to art. 21 of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber. Consequently, and since the present
matter was submitted to FIFA on 17 October 2018, the Single Judge concluded that the 2018
edition of the Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter
at hand.
2. Subsequently, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and
confirmed that in accordance with art. 23 par. 1 and 4 in combination with art. 22 lit. c) of
the June 2020 edition of the Regulations on the Status and Transfer of Players, he is
competent to deal with the matter at stake, which concerns a dispute with an international
dimension opposing a Russian club and a Turkish club.
3. In continuation, the Single Judge analysed which edition of the Regulations on the Status
and Transfer of Players should be applicable as to the substance of the matter. In this respect,
he referred, on the one hand, to art. 26 par. 1 and 2 of the June 2018 edition of the
Regulations on the Status and Transfer of Players, and on the other hand, to the fact that
the present claim was lodged with FIFA on 17 October 2018. In view of the foregoing, the
Single Judge concluded that the June 2018 edition of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the
substance (cf. art. 26 par. 1 and 2 of the Regulations).
4. His competence and the applicable regulations having been established, and entering into
the substance of the matter, the Single Judge started his analysis by acknowledging the facts
of the case and the arguments of the parties as well as the documents contained in the file.
The Single Judge, however, 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. First of all, the Single Judge acknowledged that it was undisputed between the parties that,
on 11 August 2017, a transfer agreement was concluded relating to the transfer of the
player from Zenit to Fenerbahçe for a transfer fee in the amount of EUR 7,000,000.
Player Giuliano Victor de Paula
6. Furthermore, the Single Judge also referred to article 2.2 of the transfer agreement,
according to which in case of a subsequent transfer of the player from Fenerbahçe to a third
club, Zenit would be entitled to 10% of the relevant transfer compensation, as well as to
article 6.2 of the transfer agreement, according to which in case of late payment of the
relevant amount by Fenerbahçe, a penalty fee in the amount of EUR 100,000 and a 12%
interest of the amount due would fall due.
7. In addition, the Single Judge noted that on 23 August 2018, the Respondent concluded an
agreement for the transfer of the player from its club to Al Nassr which, inter alia, in its
clause 2 provided for a transfer compensation in the amount of EUR 10,500,000, payable in
three instalments: i) EUR 5,000,000 on or before 6 September 2018; ii) EUR 3,500,000 on or
before 28 February 2019; iii) EUR 2,000,000 on or before 1 October 2019.
8. In view of the above, the Single Judge noted that the Claimant lodged a claim with FIFA
against the Respondent stating that, as a consequence of its delay in paying the
corresponding 10% sell-on fee of the first instalment of the transfer fee agreed by the
Respondent and the third club (cf. points I.4 and II.7 above), clause 6.2 of the transfer
agreement (cf. points I.3 and II.6 above) had been triggered.
9. In continuation, with regard to the payment orders provided by the Respondent, the Single
Judge took note that, despite the fact that those evidences were untranslated, it could be
distinguished that the Respondent received the amount of EUR 4,624,890 from Al Nassr on
11 September 2018 and that, subsequently, it paid an amount of EUR 462,489 to the
Claimant on 28 September 2018. In this respect, it also took note that the Claimant
confirmed having received the amount of EUR 462,489 from the Respondent on 1 October
2018.
10. At this stage, the Single Judge focussed his attention to the Respondent’s allegation that it
delayed in paying the aforementioned payment to the Claimant.
11. In this context, the Single Judge deemed appropriate to recall the content of clause 6.2 of
the agreement by means of which the parties agreed that, in case of any delay in the
payment, a penalty equivalent to EUR 100,000 will be paid to the Claimant by the
Respondent, plus an annual interest at a rate of 12% on the outstanding amount as from
the 7th day of delay until the date of effective payment.
12. In addition, the Single Judge stated that, since the parties have contractually agreed
both obligations, i.e. penalty fee and 12% interest, and since both obligations were
reasonable and thus not excessive, the Single Judge held that, based on the legal principle
of pacta sunt servanda which in essence means that agreement must be respected by
the parties in good faith, the Claimant is entitled to receive from the Respondent the
amount of EUR 100,000, plus the relevant interest over the outstanding amount.
13. In view of all the above, the Single Judge decided that the claim of the Claimant is partially
accepted and held that the Respondent has to pay to the Claimant the amount of
EUR 100,000 as penalty fee, plus an annual interest at a rate of 12% p.a. over the total
amount of EUR 462,489 as from the 7th day from the date in which Al Nassr paid the first
Player Giuliano Victor de Paula instalment of the transfer fee, i.e. 18 September 2018, until the date of effective payment,
i.e. 28 September 2018.
14. Lastly, 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. The relevant provision further states that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings (cf. art. 18 par. 1 of the
Procedural Rules).
15. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted
and that the Respondent is the party at fault. Therefore, the Single Judge decided that the
Respondent has to bear the entire costs of the current proceedings in front of FIFA.
16. Furthermore and 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. Consequently and taking
into account the total amount at dispute in the present matter, the Single Judge concluded
that the maximum amount of costs of the proceedings corresponds to CHF 15,000.
17. In conclusion, and considering the particularities of the present matter, the Single Judge
determined the costs of the current proceedings to the amount of CHF 15,000. Furthermore,
and in line with his aforementioned considerations and taking into account the degree of
success, the Single Judge decided that the amount of CHF 15,000 has to be paid by the
Respondent.
18. The Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate
that, with his decision, the pertinent FIFA deciding body shall also rule on the consequences
deriving from the failure of the concerned party to pay the relevant amounts.
19. In this regard, the Single Judge pointed out that, against clubs, the consequence of the
failure to pay the relevant amounts in due time shall consist of a ban from registering any
new players, either nationally or internationally, up until the due amounts are paid and for
the maximum duration of three entire and consecutive registration periods.
20. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the
Respondent does not pay the amounts due to the player within 45 days as from the moment
in which the Claimant, following the notification of the present decision, communicates the
relevant bank details to the club, a ban from registering any new players, either nationally
or internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the
Regulations.
21. Finally, the Single Judge recalled that the above-mentioned ban will be lifted immediately
and prior to its complete serving upon payment of the due amounts, in accordance with art.
24bis par. 3 of the Regulations.
Player Giuliano Victor de Paula
*****
III. Decision of the Single Judge of the Players’ Status Committee
1. The claim of the Claimant, FC Zenit, is partially accepted.
2. The Respondent, Fenerbahçe SK, has to pay to the Claimant the amount of EUR 100,000.
3. The Respondent has to pay 12% interest p.a. on the amount of EUR 462,489 as from 18
September 2018 until 28 September 2018.
4. Any further claim lodged by the Claimant is rejected.
5. The Claimant is directed to inform the Respondent, immediately and directly, of the relevant
bank account to which the Respondent must pay the amounts mentioned under points III.2.
and III.3. above.
6. The Respondent shall provide evidence of payment of the due amounts in accordance with
points III.2. and III.3. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if
need be, into one of the official FIFA languages (English, French, German, Spanish).
7. In the event that the amounts due in accordance with points III.2. and III.3. above are not paid
by the Respondent within 45 days as from the notification by the Claimant of the relevant
bank details to the Respondent, the Respondent shall be banned from registering any new
players, either nationally or internationally, up until the due amount is paid and for the
maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the
Regulations on the Status and Transfer of Players).
8. The ban mentioned in point III.7. above will be lifted immediately and prior to its complete
serving, once the due amounts are paid.
9. In the event that the aforementioned sums are still not paid by the end of the ban of three
entire and consecutive registration periods, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
10. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the
Respondent as follows:
Player Giuliano Victor de Paula
10.1 The amount of CHF 10,000 has to be paid to FIFA to the following bank account
with reference to case nr. 18-02169/jaa-pec:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
10.2 The amount of CHF 5,000 has to be paid directly to the Claimant.
*****
Note related to the publication:
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, FIFA may decide, at the request of a party
within five days of the notification of the motivated decision, to publish an anonymised or a
redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note relating to the appeal procedure:
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. 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 (CAS)
Avenue de Beaumont 2
CH-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:
Emilio García Silvero
Chief Legal & Compliance Officer