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 Players’ Status Committee passed in Zurich, Switzerland, on 18 March 2013, in the following composition: Theo Zwanziger (Germany), Chairman Chuck Blazer (USA), Deputy Chairman Geoff Thompson (England), member Tai Nicholas (New Zealand), member Saeed Al Masri (Syria), member Semetey Sultanov (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cisse (Senegal), member Luis H. Bedoya (Colombia), member Decio De María (Mexico), member on the claim presented by the club Club A, from country R as Claimant against the club, Club B, from country S 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 Players’ Status Committee passed in Zurich, Switzerland, on 18 March 2013, in the following composition: Theo Zwanziger (Germany), Chairman Chuck Blazer (USA), Deputy Chairman Geoff Thompson (England), member Tai Nicholas (New Zealand), member Saeed Al Masri (Syria), member Semetey Sultanov (Kyrgyzstan), member Norman Darmanin Demajo (Malta), member Aminu Maigari (Nigeria), member Victor Cisse (Senegal), member Luis H. Bedoya (Colombia), member Decio De María (Mexico), member on the claim presented by the club Club A, from country R as Claimant against the club, Club B, from country S as Respondent regarding a contractual dispute between the parties relating to the player M I. Facts of the case 1. On 1 September 2007, Club A, from country R (hereinafter: the Claimant), and Club B, from country S (hereinafter: the Respondent), concluded a transfer agreement for the transfer of the player M (hereinafter: the player), from the Claimant to the Respondent. 2. The aforementioned transfer agreement stipulated, inter alia, that: “Club B undertakes to: (…) d) Pay 15% to ACS “Club A” Club C at the moment the player or a third party pays the early termination clause in order to be transferred to another team or he is transferred by Club B to another team. ACS “Club A” Club C shall receive the minimum amount of ONE HUNDRED TWENTY-FIVE THOUSAND EURO (125.000) in any of the mentioned events of early termination or transfer.” 3. On 14 November 2011, the Claimant lodged a claim in front of FIFA against the Respondent for payment of the amount of EUR 125,000 plus 5% interest p.a. as of 9 September 2011, as well as legal costs in the amount of EUR 16,800. The Claimant argued that, by signing the abovementioned transfer agreement, it agreed with the Respondent to “jointly hold title to the economic rights to the performances of the player”. The Claimant further stated that, on 7 July 2011, the player and the Respondent mutually agreed upon the early termination of the employment contract between them. The Claimant explained that the Respondent herewith waived its right to receive the early termination fee, agreed upon with the player, or a possible transfer fee from a third club and, indirectly, prevented the Claimant from receiving its share pursuant to paragraph d) of the abovementioned transfer agreement. Subsequently, on 9 August 2011, the player signed an employment contract with the Club P, from country R (hereinafter: Club P), as a free agent. According to the Claimant, the Respondent disregarded the economic rights of the Claimant. In this respect, the Claimant referred to the jurisprudence of the Court of Arbitration for Sport (CAS) (CAS 2004/A/XXX Club I v. Club G and CAS 2004/A/XXX Club B v. Club S). 4. Furthermore, the Claimant stated that paragraph d) of the transfer agreement provided for a “condition precedent”, thereby referring to art. 151 et seq. of the Swiss Code of Obligations. According to the Claimant, the transfer agreement is deemed to be conditional since it is dependent upon the occurrence of an uncertain fact in order to be binding and, furthermore, the Respondent is liable subject to that condition and may therefore not do anything to impair the proper fulfilment of its obligation. However, by terminating the employment contract with the player, the Respondent impaired the fulfilment of the condition which would have entitled the Claimant to receive the amount agreed upon in paragraph d) of the transfer agreement. Subsequently, the Claimant referred to art. 156 of the Swiss Code of Obligations, in which it is stipulated that a condition is deemed to be fulfilled if its occurrence has been prevented by one party acting in bad faith. The Claimant argued that the Respondent acted in bad faith by terminating the employment contract with the player, while it was aware of the interest of third clubs to hire the player, without informing the Claimant. 5. On 27 March 2012, the Respondent replied to the claim and stated that, in order for a co-ownership of economic rights to be valid, the player needs to express his consent to such structure. Since the player in the present case is not a party to the transfer agreement between the Claimant and the Respondent, he has not given his consent to co-ownership of his economic rights. In this respect, the Respondent referred to CAS jurisprudence (CAS 2005/A/XXX Club T v. Club X & Mr C & FIFA). Furthermore, the Respondent argued that the transfer agreement only covered the transfer of the player’s federative rights from the Claimant to the Respondent and the compensation in exchange but not, as stated by the Claimant, the co-ownership of economic rights since this would be contrary to art. 18bis of the Regulations on the Status and Transfer of Players. 6. Furthermore, the Respondent stated that it concluded an employment contract with the player on 1 July 2009, however, the player could never meet the Respondent’s expectations and did not play any matches for its first team during the 2009/2010 season. During the following season, 2010/2011, the player was transferred on loan, free of payment, to the Club B, from country S, where he only participated in 5 matches with a total amount of 94 minutes. Consequently, the Respondent and the player voluntarily agreed to mutually terminate the employment contract on 1 July 2011, since they agreed that none of the parties benefited from the employment relationship between them. The Respondent further stated that neither the player nor any third party has ever paid any amount, in the sense of the payment of a buy-out clause, a transfer or a loan fee to the Respondent. As a result, according to the Respondent, the condition for the payment of the amount stipulated in paragraph d) of the transfer agreement was never met. II. Considerations of the Players’ Status Committee 1. First of all, the Players’ Status Committee (hereinafter: the Committee) analysed which Procedural Rules were applicable to the matter at hand. In this respect, it 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 14 November 2011, thus after 1 July 2008 but before 1 December 2012. Therefore, the Committee concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. Subsequently, the members of the Committee 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, they 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 14 November 2011. In view of the foregoing, the Committee 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 Committee confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 as well as art. 22 lit. f) of the Regulations, it 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 Committee and the applicable regulations having been established, and entering into the substance of the matter, the Committee started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. 5. First of all, the Committee acknowledged that it was undisputed between the parties that, on 1 September 2007, a transfer agreement was concluded concerning the transfer of the player from the Claimant to the Respondent. 6. Equally, the Committee acknowledged that, according to clause d) of the transfer agreement, the Respondent would have to pay to the Claimant 15%, with a minimum amount of EUR 125,000, in the event that the player or a third party would pay the “early termination clause” or in the event the player would be transferred by the Respondent to a third club. 7. Finally, the Committee took due note that it was undisputed that the Respondent and the player had mutually agreed upon the termination of the employment contract in July 2011. 8. Having established the above, the Committee noted that, on 14 November 2011, the Claimant lodged a claim with FIFA against the Respondent for payment of the amount of EUR 125,000 plus interest as well as legal costs, stating that the Respondent had waived its right to receive the early termination fee or a possible transfer fee for the transfer of the player by agreeing with the latter upon the termination of the employment contract, therewith indirectly preventing the Claimant from receiving its share in accordance with clause d) of the transfer agreement. The Claimant emphasised that, in this way, the Respondent had clearly acted in bad faith. 9. The Committee went on to consider the Respondent’s submissions in this respect. By doing so, it took due note that the Respondent stated that the condition for the payment of the amount stipulated in clause d) of the transfer agreement was never met since the Respondent and the player mutually agreed upon the termination of the employment contract and that neither the player, nor any third club has ever paid the amount stipulated in the “early termination clause” or a transfer fee to the Respondent for the transfer of the player. 10. After having carefully examined the parties’ positions, taking into consideration all the aforementioned arguments, the Committee observed that the parties, in particular, disputed whether the condition of clause d) of the transfer agreement could be considered to be triggered by the early termination of the employment contract concluded between the Respondent and the player, with mutual consent. 11. In this regard, and after having thoroughly analysed the wording of clause d) of the transfer agreement, the Committee held that said clause is to be considered a “sell-on clause”, according to which the Respondent would have to pay 15% of the compensation, with a minimum of EUR 125,000, in the event that “the player or a third party pays the early termination clause in order to be transferred to another team or he is transferred by [the Respondent] to another team.”. The Committee held that the Claimant would only be entitled to receive compensation from the Respondent in the event that the player would be transferred to a third club and the Respondent would receive a transfer compensation in exchange for such transfer, either from the player or a third party. 12. Furthermore, the Committee held that clause d) of the transfer agreement did not refer to the situation where the Respondent and the player would voluntarily agree upon the early termination of the employment contract with mutual consent and the player would, subsequently, join a third club as a free agent, which in fact happened when the player joined Club P as a free agent. 13. The Committee then turned to the argument of the Claimant that the Respondent, by terminating the contract with the player, acted in bad faith. The Committee could not follow the Claimant’s argumentation in this respect, since it did not appear that the Respondent had, at any particular point of time, violated or breached the employment contract concluded with the player. Instead, both the Respondent and the player voluntarily and mutually agreed to prematurely put an end to their contractual relationship. Therefore, the Committee held that the Respondent did not act in bad faith when it concluded a termination agreement with the player, the latter explicitly consenting to such termination. 14. Having established that a transfer of the player against payment of compensation to the Respondent did not occur and that the Respondent did not act in bad faith, the Committee concluded that the condition of clause d) of the transfer agreement was not met and, therefore, the Claimant is not entitled to receive compensation from the Respondent. 15. In addition, as regards the Claimant’s request for procedural compensation, the Committee referred to art. 18 par. 4 of the Procedural Rules and decided to also reject this part of the Claimant’s claim. 16. Lastly, the Committee 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, 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). 17. In this respect, the Committee reiterated that the claim of the Claimant is rejected. Therefore, the Committee concluded that the Claimant has to bear the costs of the current proceedings in front of FIFA. 18. 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 Committee held that the amount to be taken into consideration in the present proceedings is EUR 125,000. Consequently, the Committee concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 20,000. 19. In conclusion, and considering that the case at hand did not pose any particular factual difficulties, the Committee determined the costs of the current proceedings to the amount of currency of country H 8,000. Furthermore, and in line with the aforementioned considerations and taking into account the degree of success, the Committee decided that the amount of currency of country H 8,000 has to be paid by the Claimant. ***** III. Decision of the Players’ Status Committee 1. The claim of the Claimant, Club A, is rejected. 2. The final costs of the proceedings in the amount of currency of country H 8,000 are to be paid by the Claimant to FIFA, of which currency of country H 4,000 have already been paid by the Claimant. Consequently, the amount of currency of country H 4,000 is to be paid by the Claimant, within 30 days of notification of the present decision to FIFA to the following bank account with reference to case no.: ***** 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 Players’ Status Committee: Jérôme Valcke Secretary General Encl. CAS Directives