F.I.F.A. – Commissione per lo Status dei Calciatori (2012-2013) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2012-2013) – 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 18 March 2013, by Chuck Blazer (USA) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club W, from country E as Claimant against the club, Club G, from country I as Respondent regarding a contractual dispute between the parties relating to the player M

F.I.F.A. - Commissione per lo Status dei Calciatori (2012-2013) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2012-2013) – 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 18 March 2013, by Chuck Blazer (USA) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club W, from country E as Claimant against the club, Club G, from country I as Respondent regarding a contractual dispute between the parties relating to the player M I. Facts of the case 1. On 13 January 2011, Club W, from country E (hereinafter: “Claimant”) and the Club F, from country I (hereinafter: “Respondent”) signed a loan agreement for the loan of the player M (hereinafter: “the player”), from the Claimant to the Respondent as from 12 January 2011 until 30 June 2011. 2. The loan agreement stipulated, inter alia, the following: “For such temporary transfer of the Player’s sports performances, [the Respondent] shall pay [the Claimant] the following amount: a) EUR 500,000 b) (…) c) A further additional bonus of EUR 100,000, if - and only if- the player does NOT play for a minimum of 45 minutes in at least 50% of the remaining official matches [the Respondent] has to play in the 2010/2011 Serie “A” Championship within June 30,2011, starting from Serie A first official match played by Player. Such a condition is not to be deemed as valid in case of illness and or accident and or injury that the Player can medically certify.” The amount to be paid to [the Claimant] (…) is to include any solidarity contribution or training compensation fee (…). Payment shall be made (…) in any case no later than February 15, 2011. Above mentioned additional bonus, if due, shall be paid within 25th July 2011. 3. On 2 March 2012, the Claimant lodged a claim in front of FIFA requesting the payment of EUR 600,000 from the Respondent, calculated as follows: - EUR 500,000 regarding the loan compensation, and - EUR 100,000 since the player did not make the minimum number of appearances. 4. On 23 March 2012, the Respondent replied to the claim lodged against it and firstly stated that, in the meantime, it had paid the amount of EUR 400,390.50 to the Claimant. Furthermore, the Respondent explained that it had the obligation to retain 5% of the loan compensation for the distribution of the solidarity contribution, resulting in an outstanding amount of EUR 74,609.50, which would be paid to the Claimant “next week”. 5. As to the amount of EUR 100,000 regarding the “additional bonus”, the Respondent argued that “the condition would not apply in case of illness, accident or injury that the player can medically certify.” In this context, the Respondent argued that the player did not play for a minimum of 45 minutes in at least 50% of the matches due to a serious injury and enclosed a “medical certification” of the club’s doctor dated 1 July 2011, which confirmed that: - the player had sustained an injury in January 2011 while playing for the Claimant; - the player had undergone various scans and tests during the first two weeks of February 2011; - the player should “not start any specific agonistic activity” before his muscles were recovered for at least 90%; - the club’s doctor authorised a gradual return to physical training and a limited involvement of the field of play for at least three months; - “In such a period of time the team played eleven matches, during which [the player] played a total of 63 minutes (17+2+16+20+8), keeping in the meantime on his personalised programme of muscular strengthening. The player was then only fully available for the last two Championship matches”. 6. In its replica, the Claimant acknowledged the payment of EUR 400,000 by the Respondent and, consequently, amended its claim to EUR 200,000. The Claimant indicated that the loan agreement clearly states that the solidarity contribution is to be included in the payments and that, therefore, no amount should be deducted from the loan compensation. 7. As to the bonus payment, the Claimant explained that such payment was included in the loan agreement as an encouragement for the Respondent to field the player more often. The Claimant recognized that the player had a slight injury when he joined the Respondent, however, the Claimant outlined that the player was named as a substitute for the Respondent for every match of the Respondent played after 16 February 2011. In this respect, the Claimant enclosed a document listing all matches of the Respondent as from 16 January 2011 until 22 May 2011 (20 matches in total) and stated that the player was on the bench for 13 games and made, in those 13 games, 7 appearances. The Claimant therefore doubted very much that the Respondent would name an injured player as a substitute and, hence, it deemed that the bonus payment was due. The list enclosed by the Claimant indicated that the player was not part of the squad of the Respondent in the first 7 matches (between 16 January 2011 and 16 February 2011), but that in the remaining 13 matches, the player was named as a substitute 12 times and was in the starting line-up once. 8. Finally, the Claimant requested that “an interest charge should be filed against [the Respondent]” and “a judgement on the costs of [the Claimant] to bring this case to FIFA”. 9. In its duplica, the Respondent reiterated its previous position and added that the phrase “inclusive of solidarity contribution” actually means that the 5% solidarity contribution is meant to be part of the total amount and the Respondent shall duly retain and distribute it. 10. As to the bonus payment, the Respondent reiterated that it had already provided medical evidence that the player did not play due to a serious injury. According to the Respondent’s doctor affidavit, as soon as the player’s muscles were healed, the player was authorised to make a gradual return to physical training with muscular strengthening sessions and a limited involvement in the field of play for at least 3 months. The Claimant added that, therefore, the coach had very little choice as he could only field the player on very few occasions. 11. On 20 April 2011, Club N, from country S, lodged a claim in front of FIFA against the Respondent regarding the payment of the solidarity contribution in relation to the transfer of the player from the Claimant to the Respondent. On 25 May 2011, the Respondent indicated it had paid the amount of EUR 2,115.86 as solidarity contribution to Club N. 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 (editions 2008 and 2012; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 2 March 2012. 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 was 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 2012 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 2 March 2012. 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 and par. 2 of the Procedural Rules in connection with art. 23 par. 1 and par. 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 two 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 as well as the arguments and the documentation submitted by the parties. 5. First of all, the Single Judge acknowledged that it was undisputed between the parties that, on 13 January 2011, a loan agreement had been concluded between the Claimant and the Respondent relating to the loan of the player from the Claimant to the Respondent for a loan compensation amounting to EUR 500,000. 6. Equally, it was undisputed between the parties that an additional amount of EUR 100,000 was due to the Claimant in case the player did not play in at least 50% of the remaining official matches played by the Respondent before 30 June 2011. Said provision would however not be deemed valid in case of illness and/or accident and/or injury that the player could medically certify. 7. Furthermore, the Single Judge observed that the Claimant initially lodged a complaint for the amount of EUR 600,000 against the Respondent, however after having received a payment from the Respondent, the Claimant amended its claim to the amount of EUR 200,000. The Respondent argued nonetheless that an amount of merely EUR 74,609.50 was still outstanding, as i) it had to deduct the solidarity contribution from the amount payable to the Claimant, and ii) it disputed that the bonus payment was due, since the player had been injured, which fact was confirmed by a medical certification of the Respondent’s doctor. 8. In continuation, the Single Judge acknowledged that, in turn, the Claimant disputed the aforementioned arguments of the Respondent asserting that the solidarity contribution was included in the loan compensation and that therefore no deductions should have been made from the relevant loan compensation. As to the bonus payment, the Claimant explained the ratio behind the relevant provision and very much doubted that the Respondent would select an injured player for any of its games. 9. In this respect, the Single Judge started by examining the provision in relation to the bonus payment. Said provision stated the following: “A further additional bonus of EUR 100,000, if - and only if- the player does NOT play for a minimum of 45 minutes in at least 50% of the remaining official matches [the Respondent] has to play in the 2010/2011 Serie A Championship within June 30,2011, starting from Serie A first official match played by Player. Such a condition is not to be deemed as valid in case of illness and or accident and or injury that the Player can medically certify.” 10. In this framework, the Single Judge noted that, on the one hand, the Respondent had provided a medical certificate of its doctor explaining that, on 16 February 2011, he had authorised the player to gradually return to physical training, and on the other hand, that the Claimant provided a document which showed that the player had been selected for the first team of the Respondent in 13 of the 20 games played. Said list showed that the player, after 16 February 2011, was on the bench 12 games and in the starting line-up once. Out of the 12 games the player was on the bench, he entered the pitch 7 times. 11. In this context, the Single Judge started by highlighting that the Respondent had not provided any documentary evidence in the form of medical reports, diagnoses etc., which had been formed during the actual period of time the player was at the Respondent. In other words, the Respondent had not made available any medical report or diagnose created between 13 January 2011 and 30 June 2011 which would support the assertion of the Respondent that in said period of time the player was not fully fit to partake in a minimum of 45 minutes in at least 50% of the games played by the Respondent. The Single Judge noted that the only document backing up the argumentation of the Respondent was a medical certification of the Respondent’s doctor dated 1 July 2011 explaining the various tests performed and the diagnoses made by himself. The Single Judge held that, particularly in light of the relevant provision the parties had included in the loan agreement, one may expect from a professional football club such as the Respondent that it would have well-documented the various tests, in order to prove to the other party that indeed the player was not fit to partake in a minimum of 45 minutes in at least 50% of the games played by the Respondent. 12. Further to the above, the Single Judge pointed out that, according to the medical certification of the Respondent’s doctor, the player underwent various clinical tests on 12 January 2011, i.e. the day prior to the date the loan agreement was concluded. Furthermore, the last medical tests had apparently been performed by the Respondent on 16 February 2011 after which no further tests were performed and after which the player started being selected for the Respondent’s first team. 13. In absence of such documentary evidence and taking into consideration the list provided by the Claimant which indicated that the player had been in the match selection for 13 out of 20 games, the Single Judge decided that it had not been proven to his comfortable satisfaction that, due to an injury, the player had indeed not been able to partake in a minimum of 45 minutes in at least 50% of the games played by the Respondent. The Single Judge agreed with the Claimant that it was hard to understand why a club would select a player in 13 official games while he was not fit to play at least 45 minutes. In view of all the foregoing, the Single Judge decided that the condition for the payment of the bonus payment is valid and that, as a result, the Respondent is liable to pay the amount of EUR 100,000 to the Claimant. 14. Having established the above, the Single Judge turned his attention to the argument of the Respondent that it had to retain 5% of the loan compensation for the distribution of the solidarity contribution and that therefore only EUR 74,609.50 was due and not the entire loan compensation amounting to EUR 500,000. 15. As a general remark in relation to the solidarity contribution mechanism, the Single Judge pointed out that, as established in art. 21 in connection with art. 1 of Annexe 5 of the Regulations, if a professional moves during the course of a contract, 5% of any compensation, not including training compensation paid to his former club, shall be deducted from the total amount of this compensation and distributed by the new club as a solidarity contribution to the club(s) involved in his training and education over the years. 16. In this respect, the Single Judge referred to art. 12 par. 3 of the Procedural Rules which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof and noted that the Respondent had not provided any documentary evidence that it had indeed distributed 5% of the loan compensation it had agreed upon with the Claimant to the club(s) involved in the player’s training and education over the years. In this context, the Single Judge considered that it is clearly not the purpose of the provisions regarding solidarity contribution that the new club, i.e. the Respondent, can simply retain 5% of the loan compensation without distributing said 5% to the clubs involved in the training and education of the player. The Single Judge noted that it could only be established that the Respondent had paid the amount of EUR 2,115.86 as solidarity contribution to country N on 25 May 2011. Taking into account all the foregoing, the Single Judge considered that the Respondent could not enrich itself by retaining the full 5% of the loan compensation without distributing such percentage as solidarity contribution to the club(s) involved in the training and education of the player. 17. In view of the above, the Single Judge concluded that the Respondent had not provided the necessary documentary evidence that it had in fact distributed the full 5% of the relevant loan compensation to the club(s) involved in the player’s training and education and decided that the Respondent was liable to pay to the Claimant a further amount of EUR 97,844.14, i.e. the amount of EUR 100,000 - EUR 2,115.86. 18. Consequently, the Single Judge held that, in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent has to fulfill its contractual obligations towards the Claimant. Therefore, the Single Judge decided to partially accept the claim of the Claimant, including the interest requested, and held that the Respondent has to pay to the Claimant the amount EUR 197,844.14 plus 5% interest p.a. on said amount as from 2 March 2012 until the date of effective payment 19. 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 H 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). 20. In respect of the above, and taking into account that the Claimant had been the successful party, the Single Judge concluded that the Respondent has to bear the full costs of the current proceedings before FIFA. 21. 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 600,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 22. In conclusion, and considering that the case at hand did pose some particular factual difficulties and was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 10,000. 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 H 10,000 has to be paid by the Respondent. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club W, from country E, is partially accepted. 2. The Respondent, Club G, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 197,844.14 plus 5% interest p.a. on said amount as from 2 March 2012 until the date of effective payment. 3. In the event that the aforementioned sum plus interest is not paid within the stated time limit, 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. The final costs of the proceedings, amounting to currency of country H 10,000, are to be paid by the Respondent within 30 days of notification of the present decision as follows: 5.1. The amount of currency of country H 5,000 has to be paid to FIFA to the following bank account with reference to case nr. XX-XXXXX: 5.2. The amount of currency of country H 5,000 has to be paid directly to the Claimant. 6. The Claimant is directed to inform the Respondent directly and immediately of the account number to which the remittances are to be made in accordance with the above points 2. and 5.2. 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 67 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: Jérôme Valcke Secretary General Encl. CAS Directives