F.I.F.A. – Commissione per lo Status dei Calciatori (2011-2012) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2011-2012) – club vs. club disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 24 April 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club G, from country R as Claimant against the club Club M, from country U as Respondent regarding a contractual dispute between the parties relating to the player M

F.I.F.A. - Commissione per lo Status dei Calciatori (2011-2012) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2011-2012) – club vs. club disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 24 April 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club G, from country R as Claimant against the club Club M, from country U as Respondent regarding a contractual dispute between the parties relating to the player M I. Facts of the case 1. On 12 February 2011, Club G, from country R (hereinafter: Claimant) and the Club M, from country U (hereinafter: Respondent) concluded a transfer agreement for the transfer of the player M (hereinafter: the player). 2. During the proceedings, three different versions of the transfer agreement were presented by the parties involved; a transfer agreement only signed by the Claimant (provided by the Claimant), a transfer agreement only signed by the Respondent (provided by the Respondent) and a transfer agreement duly signed by both parties (provided by the Claimant). 3. The transfer agreement duly signed by both parties stipulated that the player would be transferred from the Claimant to the Respondent for the amount of EUR 1,250,000, “which shall be paid upon the signing up of the present contract during 10 bank days. The payment is made on the account of [the Claimant]”. Furthermore, the transfer agreement stipulated that: “after confirmation of the payment by [the Respondent], [the Claimant] takes over the responsibility of drawing all the documents necessary for International Transfer Certificate delivery of Football Federation of country R to Football Federation of country U”. The transfer agreement duly signed by both parties did not specify the bank details of the Claimant. 4. The transfer agreement only signed by the Claimant equally stipulated that the player would be transferred from the Claimant to the Respondent for the amount of EUR 1,250,000, “which shall be paid upon the signing up of the present contract during 10 bank days. The payment is made on the account of [the Claimant]”. Said transfer agreement indicated the Claimant’s bank account as follows: 5. The transfer agreement only signed by the Respondent stipulated that the player would be transferred from the Claimant to the Respondent for the amount of EUR 1,250,000, however, payable in two instalments: EUR 700,000 on 2 March 2011 and EUR 550,000 on 20 March 2011. Said transfer agreement indicated the same bank account as in point I./4. above. 6. According to the Transfer Matching System (TMS), three transfer instructions were entered by the Respondent in order to engage the player against payment (on 14 February 2011, 28 February 2011 and 2 March 2011) all of which were eventually “cancelled”. For each transfer instruction a transfer agreement was uploaded onto the TMS by the Respondent. 7. The version of the transfer agreement uploaded onto the TMS by the Respondent in connection with the transfer instruction dated 14 February 2011 was not provided to FIFA by one of the parties during the present proceedings. This version of the transfer agreement was signed by both parties and indicated the Claimant’s bank account as follows: 8. The version of the transfer agreement uploaded onto the TMS by the Respondent in connection with the transfer instructions dated 28 February 2011 and 2 March 2011 was the same version as indicated in point I./4. above, i.e. the transfer agreement only signed by the Claimant, however, this time also signed by Respondent. 9. On 1 April 2011, the Claimant lodged a claim in front of FIFA against the Respondent for breach of the agreement indicating that the Respondent had failed to pay the amount of EUR 1,250,000 as agreed upon in the transfer agreement duly signed by both parties. Consequently, the Claimant requested: - Payment of the amount of EUR 1,250,000; - subsequently, if the Players’ Status Committee (PSC) considered that the transfer agreement between the Claimant and the Respondent did not entail any effects because of Respondent’s failure to fulfil its contractual obligations, to rule the urgent return of the player to the Claimant; - to order the Respondent to pay the “trial expenses” to the Claimant. 10. In support of its claim, the Claimant outlined the events that had, in its view, occurred: - 14 February 2011: Without having made the relevant payment to the Claimant, the Respondent sent the Claimant a request on the TMS to issue the International Transfer Certificate (ITC) of the player. - 28 February 2011: the Respondent sent the Claimant a new request on the TMS to issue the ITC, again without having made the relevant payment to the Claimant. - 1 March 2011 (18:29 h): the Respondent informed the Claimant that a payment of EUR 700,000 had been made and requested the signing of a new transfer agreement (the transfer agreement only signed by the Respondent), by means of which the amount payable would be paid in two instalments; EUR 700,000 on 2 March 2011 and EUR 550,000 on 20 March 2011. With regard to the new transfer agreement, the Claimant indicated that the Respondent’s representative had contacted the Claimant by telephone whereby the Claimant had communicated to said representative that it was waiting for the confirmation of the payment of EUR 700,000 as well as that it was open to conclude the new transfer agreement. - 2 March 2011: the Claimant’s bank, “Raiffessien”, informed the Claimant that although the payment of EUR 700,000 was initiated by the Respondent, the payment had eventually been withdrawn. 11. In this context, the Claimant submitted a copy of the SWIFT stamped by the Raiffeissen Bank dated 1 March 2011 which indicated that EUR 700,000 was transferred for the “prepayment for the transfer of the player (…) from [the Claimant] to [the Respondent]” to the following bank account: 12. In its response, the Respondent acknowledged that the sum should have been paid to the bank account indicated in the transfer agreement, but that the execution of such payment was impossible to perform due to the Claimant itself, as it had provided the Respondent with the incorrect data. More specifically, the beneficiary’s bank name “MKB XXX” did not correspond with the bank’s SWIFT and the Respondent added that, on top of the fact that the beneficiary’s bank name did not correspond with the bank’s SWIFT, the beneficiary turned out not to be the Club G, which had signed the transfer agreement, but “Fundatio Stadion country G”. In this respect, the Respondent submitted an undated letter addressed to it and sent by the Deputy Head of the “Raiffeisen Bank Aval”, by means of which the latter informed the Respondent that, following the Respondent’s request dated 14 February 2011, the payment outlined in the transfer agreement could not be made, since: “The name of Beneficiary’s bank - MKB XXX- does not correspond to bank’s SWIFT - CRDZROBU. The correct name of the bank is MKB XY. (site www.swift.com). We kindly ask you to specify the above mentioned details of your partner and to make their appropriate changes in Transfer agreement dated 12 of February 2011. We also draw your attention that the name of Football Club “G”, which is mentioned in preamble, does not correspond to Beneficiary of financial resources - Fundatia Stadion country G”. 13. In the Respondent’s view, taking into account that the transfer agreement stipulated that the payment “is made on the account of [the Claimant]”, it was evident that the above-mentioned events “could drive to nothing else but the impossibility of a clear TMS and thus to the failure of the transfer”. Continuing, the Respondent pointed out that clubs are obliged, in accordance with art. 4 of Annexe 3 of the FIFA Regulations on the Status and Transfer of Players, to provide the bank code or bank name, both of which were incorrectly provided by the Claimant. The Respondent added that “the beneficiary was not the signing club, which gave the second problem to the TMS correct date entering.” 14. Moreover, the Respondent stated that “The TMS was tried three times, but failed because of the erroneous data of [the Claimant].” In this respect, the Respondent enclosed a letter sent by the Football Federation of country U which read as follows: “On your request N 424 dated 5 of May 2011 we would like to inform you that in accordance with the information which we have, there are three records in relation to the transfer of the player M from [the Claimant] to [the Respondent]: N26464, N27643, N27821. All these records are made by one club - [the Respondent]”. 15. For the sake of completeness, the Respondent indicated that the player had never played with it, left country U without being registered and concluded that the Claimant “had not only provided erroneous date, but also breached the contract by not stating that the beneficiary would be another person”. 16. In its replica, the Claimant explained that the only agreement that should be considered is the agreement duly signed by both parties on 12 February 2011. In this regard, the Claimant explained that since that agreement did not contain the relevant bank details of the Claimant, it had provided the Respondent, on the same date, with a copy of the agreement only signed by the Claimant, which contained the relevant information regarding the bank account of the Claimant. Hence, the Claimant argued that the Respondent was aware of all the relevant information in respect of the bank account to which the payment should have been made and stressed that the aforesaid was adduced by the fact that the transfer agreement only signed by the Respondent contained the same bank details. 17. The Claimant also indicated that on 1 March 2011, the Respondent had informed the Claimant of the payment of EUR 700,000 on the Claimant’s account “Raiffeisen Bank - the country R Subsidiary”, however the payment of this amount was withdrawn after the notification was sent to the Claimant. 18. Finally, the Claimant pointed out that the player had joined the Respondent and had already played “a few training games” with the team. 19. In its duplica, the Respondent indicated that regardless from which version of the transfer agreement is considered, all versions indicate that “the payment is made on the account of Club G”. In this respect, the Respondent reiterated that the beneficiary of the bank account provided by the Claimant was not the Claimant, but “Fundatio Stadion country R”, and stated that this is contrary to the rules of the TMS, which stipulate that “no part of any transfer or training compensation made as part of this transfer has been, or will be, paid to any party other than the club, the player or the association mentioned above”. Furthermore, the Respondent argued that, in violation of art. 4 of Annexe 3 of the Regulations, the beneficiary’s bank name and swift code were wrongfully provided by the Claimant, and, therefore, it was impossible for the Respondent to make the payment stipulated in the transfer agreement. The Respondent further stated it had shown its good intentions to make the payment, which it tried to do several times, but, due to the Claimant’s mistake, it was impossible for the Respondent. Hence, the Claimant’s mistake led to the result that the Respondent could not comply with the obligations stipulated in the TMS and, thus, could not obtain the ITC of the player. 20. As to the alleged harm and inconveniences suffered by the Claimant as a result of their alleged impossibility to field the player during the remaining matches of the 2010/2011 season, the Respondent argued that this argument should not be taken into account, since the player’s ITC was never issued, the player still had a valid contract with the Claimant and the player was thus still registered with the country R Football Federation. Consequently, and hereby referring to the decision rendered by the Court of Arbitration for Sport (CAS) in CAS 2010/A/2144 Club P v Club Q, the Claimant could have accepted the player back as it still had the player’s registration rights and could thus field him in matches in the remainder of the season. In this regard, the Respondent referred to art. 44 par. 1 of the Swiss Code of Obligations according to which the party suffering damages has the duty to mitigate its damages; the Claimant had some degree of fault in aggravating its own damages by not accepting the player back. 21. Finally, the Respondent stated that if it would be held liable to indemnify the Claimant, it requests that the PSC takes into account the following: - The player was registered with Club U, from country B, in June 2011, despite the fact that the player still had a valid contract with the Claimant; - If the transfer to Club U was a free transfer, then the Claimant contributed to the aggravation of its own damages, as it had decided to release the player despite the fact that the player had still a valid contract with the Claimant; - If a transfer compensation had been paid for the transfer to Club U, then the Claimant has already been compensated for the alleged damages suffered by it. Thus, whether the player was transferred on a free basis or for a transfer compensation, any loss caused as a result from the transfer of the player to Club U should be blamed on the Claimant; - The ITC for the player was never issued. Therefore, it would be unjust and unfair to order the Respondent to pay the full amount as it was never able to benefit from the services of the player. 22. According to the information contained in the TMS, the relevant registration period in country U ran from 31 January 2011 until 2 March 2011. 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 which Procedural Rules were applicable to the matter at hand. In this respect, he referred to art. 21 par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 1 April 2011, thus after 1 July 2008. Therefore, the Single Judge concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players is 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 2010 edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged in front of FIFA on 1 April 2011. In view of the foregoing, the Single Judge concluded that the 2010 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. 3. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. f) of the Regulations, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to different associations. 4. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts, the arguments and the documentation submitted by the parties as well as the documentation contained in the TMS. In this context, the Single Judge referred to art. 6 par. 3 of Annexe 3 of the Regulations in accordance with which, within the scope of proceedings pertaining to the application of said Regulations, FIFA may use any documentation or evidence generated by or contained in the TMS in order to properly assess the issue at stake. 5. With due consideration to the above, the Single Judge went on to examine the positions of both parties in the present dispute. In this respect, he firstly noted that the Claimant requested the payment of the amount of EUR 1,250,000 corresponding to the amount stipulated in the transfer agreement concluded between both parties, emphasizing that the Respondent was aware of the correct bank details of the Claimant. 6. Secondly, the Single Judge observed that in its submission the Respondent did not dispute that the aforesaid amount of transfer compensation should have been paid to the Claimant, but emphasized that it was impossible to make the relevant payment, because of the incorrect bank details provided by the Claimant. The Respondent indicated that, as a consequence, the TMS procedure had failed and, eventually, no transfer occurred and, therefore, no transfer compensation is payable. 7. After having carefully examined the parties’ positions as well as the information contained in the TMS, the Single Judge started by addressing the issue whether or not transfer compensation is due by the Respondent to the Claimant. In this respect, the Single Judge focussed on the question whether or not the Respondent was aware of the correct bank account of the Claimant, i.e. whether or not the Respondent had the information at its disposal to make the payment of EUR 1,250,000 to the Claimant in accordance with the transfer agreement concluded between the parties. 8. In this regard, the Single Judge was of the opinion that it could be established that, on 28 February 2011, the Respondent was aware of the correct bank account of the Claimant. In this context, the Singe Judge pointed out that the transfer agreement uploaded by the Respondent onto the TMS on 28 February 2011 and 2 March 2011 indicated the correct bank account of the Claimant i.e. the bank details the Claimant alleged to have sent to the Respondent on 12 February 2011. Equally, the Single Judge referred to payment of EUR 700,000 initially made by the Respondent, which was adduced by the SWIFT stamped by the Raiffeissen Bank Aval in country U dated 1 March 2011. 9. In this context, the Single Judge acknowledged that some confusion had arisen between the parties in relation to the correct bank account of the Claimant, which could be adduced by the undated letter of the “Raiffeisen Bank Aval” that referred to the “MKB XXX”, i.e. the name of the bank stipulated in the transfer agreement uploaded onto the TMS by the Respondent in connection with the transfer instruction dated 14 February 2011 (cf. point I./7. above). Nevertheless, the Single Judge reiterated that the transfer agreements uploaded by the Respondent onto the TMS on 28 February 2011 and 2 March 2011 indicated “RAIFFEISEN BANK - Agentia country R” as being the bank of the Claimant. 10. Hence, the Single Judge considered that, on 28 February 2011, the Respondent must have been aware of the correct bank details of the Claimant and was, thus, in a position to transfer the agreed transfer compensation to the Respondent. 11. Notwithstanding the above considerations, the Single Judge wished to refer, once more, to the transfer agreement uploaded on the TMS on 14 February 2011 and concluded that, in the present matter, the Claimant had not been without fault either. The Single Judge considered that by providing two different bank accounts, the Claimant was to be held responsible for the confusion created in connection with the issue as to which was the correct bank account of the Claimant. The Single Judge stressed that said confusion could be adduced by the undated letter of the “Raiffeisen Bank Aval”, from which it could be established that the Respondent had initially indeed tried to transfer the relevant transfer compensation to the Claimant. 12. Taking into account all the aforesaid, but also considering that according to the TMS the registration period in country U ended on 2 March 2011, the Single Judge was of the opinion that the information in relation to the two different bank accounts had certainly influenced the eventual non-occurrence of the transfer. In other words, the Single Judge was of the firm opinion that the Claimant carried a part of the responsibility that the transfer at stake was not properly performed and had, thus, partially contributed to the unsuccessful transfer. 13. On account of the above and again emphasizing that both parties had a certain degree of fault in the present matter, the Single Judge decided that the amount of compensation payable by the Respondent to the Claimant should be reduced. In this context and in view of the particularities of the present matter, the Single Judge found the amount of EUR 700,000 a fair and reasonable amount of compensation. 14. In conclusion, the Single Judge decided to partially accept the claim of the Claimant and, consequently, ruled that the Respondent was liable to pay to the Claimant the amount of EUR 700,000. 15. 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 currency of country L 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). 16. In respect of the above, and taking into account that the claim of the Claimant had only been partially accepted, the Single Judge concluded that both the Claimant and the Respondent have to bear a part of the costs of the current proceedings before FIFA. 17. 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. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 1,250,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country L 25,000. 18. In conclusion, and considering that the case at hand posed particular factual difficulties, the Single Judge determined the costs of the current proceedings to the amount of currency of country L 25,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge of the Players’ Status Committee decided that the amount of currency of country L 10,000 has to be paid by the Claimant and the amount of currency of country L 15,000 by the Respondent. II. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club G, is partially accepted. 2. The Respondent, Club M, has to pay to the Claimant the amount of EUR 700,000 within 30 days as from the date of notification of this decision. 3. Any further claims lodged by the Claimant are rejected. 4. If the aforementioned sum is not paid within the aforementioned deadline interest at the rate of 5% per year will apply as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. The final amount of costs of the proceedings in the amount of currency of country L 25,000 are to be paid within 30 days as from the date of notification of the present decision as follows: 5.1. The amount of currency of country L 15,000 by the Respondent to FIFA to the following bank account with reference to case no. XX- XXXX: 5.2. The amount of currency of country L 10,000 by the Claimant to FIFA. Given that the Claimant has already paid the amount of currency of country L 5,000 as advance of costs at the start of the present proceedings, the Claimant has to pay the amount of currency of country L 5,000 to FIFA to the aforementioned bank account with reference to case no. XX-XXXXX. 6. The Claimant is directed to inform the Respondent directly and immediately of the account number to which the remittance is to be made in accordance with the above point 2. and to notify the Single Judge of the Players’ Status Committee of every payment received. Note relating to the motivated decision (legal remedy): According to article 63 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 www.tas-cas.org For the Single Judge of the Players’ Status Committee: Markus Kattner Deputy Secretary General Encl. CAS Directives
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