DRC Overdue Payables
Texto da decisão
Decis ion of the S ingle Judge
of the Play ers ’ S tatus Com m ittee
passed on 18 October 2017,
by
Mr Geoff Thom ps on (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
regarding a contractual dispute
between the parties in connection with overdue payables
as Respondent
I.
Facts of the cas e
1.
On 21 February 2017, the Club of Country B, Club A (hereinafter: Claimant), and the
Club of Country D, Club C (hereinafter: Respondent) signed a loan agreement regarding
the temporary transfer of the player, Player E (hereinafter: player) from the Claimant to
the Respondent.
2.
In accordance with the loan agreement, the Respondent undertook to pay to the
Claimant the amount of EUR 2,000 by no later than 31 May 2017.
3.
Equally, clause 6.3 of the loan agreement reads as follows:
“In case of any delayed payment hereunder [the Respondent] undertakes to pay 15%
interest per year for overdue payments immediately at Club A’s request”.
4.
By correspondence dated 13 July 2017, the Claimant put the Respondent in default of
payment of the amount of EUR 2,000 setting a 10 days’ time limit in order to remedy
the default.
5.
On 9 August 2017, the Claimant lodged a claim against the Respondent before FIFA
asking that the Respondent be ordered to pay overdue payables in the amount of EUR
2,000 corresponding to the loan fee.
6.
The Claimant further asks to be awarded interest of 15% p.a. as from 1 June 2017 until
the date of effective payment and that the Respondent be ordered to reimburse the
advance of costs and to bear any and all additional costs.
7.
In spite of having been invited to do so, the Respondent did not reply to the claim.
II.
Cons iderations of the S ingle Judge of the Play er’s S tatus Comm ittee
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 9 August 2017.
Consequently, the Rules Governing the Procedures of the Players’ Status Committee and
the Dispute Resolution Chamber (edition 2017; hereinafter: 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. 4 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.
Player E
(Club A, Country B / Club C, Country D)
Page 2 of 6
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 9 August 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 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, in accordance with which the Claimant was entitled to receive
from the Respondent, inter alia, the amount of EUR 2,000 by no later than 31 May 2017.
6.
The Single Judge further acknowledged that the Claimant lodged a claim against the
Respondent before FIFA, maintaining that the Respondent has overdue payables
towards it in the total amount of EUR 2,000 corresponding to the loan fee.
7.
In this context, the Single Judge took particular note of the fact that, on 13 July 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 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,
failed to present its response to the claim of the Claimant, in spite of having been
invited to do so. In this way, the Single Judge considered that the Respondent
renounced its right to defence and thus accepted the allegations of the Claimant.
10.
Furthermore, as a consequence of the aforementioned consideration, the Single Judge
concluded that in accordance with art. 9 par. 3 of the Procedural Rules he shall take a
decision upon the basis of the documents already on file, in other words, upon the
statements and documents presented by the Claimant.
11.
Having said this, the Single Judge acknowledged that, in accordance with the loan
agreement provided by the Claimant, the Respondent was obliged to pay to the
Claimant the amount of EUR 2,000 payable by no later than 31 May 2017.
Player E
(Club A, Country B / Club C, Country D)
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12.
Taking into account the documentation presented by the Claimant in support of its
petition, the Single Judge concluded that the Claimant had substantiated its claim
pertaining to overdue payables with sufficient documentary evidence.
13.
On account of the aforementioned considerations, the Single Judge established that the
Respondent failed to remit the amount of EUR 2,000 payable to the Claimant.
14.
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.
15.
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 2,000.
16.
In addition, taking into account the Claimant’s request as well as clause 6.3 of the loan
agreement, the Single Judge decided that the Respondent must pay to the Claimant
interest of 15% p.a. on the amount of EUR 2,000 as from 1 June 2017 until the date of
effective payment.
17.
Moreover, the Single Judge decided to reject the Claimant’s request to be reimbursed
“any and all additional costs” in accordance with art. 18 par. 4 of the Procedural Rules
and the Players’ Status Committee’s respective longstanding jurisprudence in this
regard.
18.
In continuation, taking into account the consideration under number II./14. 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.
19.
The Single Judge established that by virtue of art. 12bis par. 4 of the Regulations he has
competence to impose sanctions on the Respondent. Bearing in mind that the
Respondent did not reply to the claim of the Claimant, the Single Judge decided to
impose a fine on the Respondent in accordance with art. 12bis par. 4 lit. c) of the
Regulations. Furthermore, taking into consideration the amount due of EUR 2,000, the
Single Judge regarded a fine amounting to CHF 1,500 as appropriate and hence decided
to impose said fine on the Respondent.
20.
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.
21.
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
Player E
(Club A, Country B / Club C, Country D)
Page 4 of 6
the parties’ degree of success in the proceedings and are normally to be paid by the
unsuccessful party.
22.
Taking into account that the responsibility of the failure to comply with the payment of
the amounts as agreed in the loan agreement 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 2,000. Consequently, the Single Judge concluded that the
maximum amount of costs of the proceedings corresponds to CHF 5,000.
23.
Considering the particular circumstances of the present matter, bearing in mind that the
Respondent did not reply to the claim of the Claimant, the Single Judge determined the
costs of the current proceedings to the amount of CHF 5,000 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 S ingle Judge of the Play ers ’ S tatus Com mittee
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 2,000, plus interest
at the rate of 15% p.a. as from 1 June 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 of the Claimant is rejected.
5.
The
Respondent
is
ordered
to
pay
a
fine
in
the
amount
of
CHF 1,500. The fine is to be paid w ithin 30 day s of notification of the present decision
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
6.
The final amount of costs of the proceedings in the amount of CHF 5,000 is to be paid
by the Respondent, w ithin 30 day s as from the notification of the present decision, as
follows:
Player E
(Club A, Country B / Club C, Country D)
Page 5 of 6
a)
The amount of CHF 1,000 by the Respondent to the Claimant.
b) The amount of CHF 4,000 to FIFA to above-mentioned bank account of FIFA (cf.
point III./5.) with reference to case no. XXX.
7.
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./6.a) are to be made
and to notify the Single Judge of every payment received.
*****
Note relating to the m otiv ated 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: [email protected]
www.tas-cas.org
For the Single Judge
of the Players’ Status Committee:
Omar Ongaro
Football Regulatory Director
Encl: CAS directives
Player E
(Club A, Country B / Club C, Country D)
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