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 19 September 2012, by Mr Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club A, from country B as “Claimant” against the club Club S, from country T as “Respondent” regarding a contractual dispute between the parties and 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 19 September 2012, by Mr Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club A, from country B as “Claimant” against the club Club S, from country T as “Respondent” regarding a contractual dispute between the parties and relating to the player M. I. Facts of the case 1. On 28 January 2010, club A (hereinafter: “the Claimant”) sent a letter to club S (hereinafter: “the Respondent”) requesting “to approve” the loan of the player M (hereinafter: “the player”), “till the end of the sports season 2009/2010, in return of an amount of USD 150,000 […]”. 2. Also on 28 January 2010, the Respondent sent a letter to the Claimant which read as follows: “With reference to your letter dated 28/1/2010 regarding the transfer of the professional player M on loan to your esteemed club till the end of sports season 2009/2010 in return of 150,000 USD. Under the good relations between our clubs, we are pleased to inform you about approving the transfer of the mentioned player to your club till the end of sports season 2009/2010”. 3. On 31 March 2010, the Claimant lodged a claim with FIFA against the Respondent for the amount of USD 237,000 in connection with the abovementioned loan. 4. In this respect, the Claimant stated that, at the end of the second transfer window of the 2009/2010 sporting season, i.e. “31 January 2010 in Country B”, the parties had started to conduct negotiations concerning the loan of the player until 31 May 2010, i.e. the end of the 2009/2010 season. In this regard, the Claimant stated that in response to its correspondence dated 28 January 2010, on the same date, the Respondent had approved the loan of the player to the Claimant until the end of the 2009/2010 season, in return of an amount of USD 150,000. 5. In continuation, the Claimant stated that, on the basis of the information provided by the Respondent, the Football Association of country T (hereinafter: “the FA of Country T”) had issued the relevant International Transfer Certificate (ITC), whilst, “in contrary to the provision of […] the FIFA Regulations on the Status and Transfer of Players” (hereinafter: “the Regulations”), the Football Association of Country B(hereinafter: “FA of Country B ”) was not provided with the player passport. Furthermore, the Claimant held that the ITC contained the literal wording with regard to the player: “having fulfilled his/her obligations both towards his/her former club and our Association, is therefore free to pursue sports activities and register with another association affiliated to FIFA”. 6. In continuation, the Claimant stated that in light of the above, on 1 February 2010, it had proceeded to transfer the amount of USD 150,000 to the Respondent. 7. Furthermore, the Claimant stated that on the same date, it had entered into an employment contract with the player and had paid him a signing-on fee amounting to USD 87,000. 8. The Claimant further claimed that “in the following weeks it was revealed that the Player had played within official matches during the sports season 2009/2010 for two clubs before he was registered for the Claimant. As a consequence of the above, the Player’s registration was provisionally suspended by the FA of Country B out of the records of Club A which was formalized on 18 February 2010“. Moreover, the Claimant stated that the player had then returned to the Respondent. 9. In this respect, the Claimant stated that by means of communications dated 15 February 2010 and 2 March 2010, it had complained to the Respondent that the latter had not informed the Claimant “during the relevant negotiations concerning the Player’s loan transfer on [of] the latter’s participation in one official match for Club L [hereinafter: “Club L ”] in the League of Country E on 6 August 2009 […]”. Consequently, the Claimant had requested from the Respondent the reimbursement of USD 150,000 paid on 1 February 2010. 10. In this regard, the Claimant stated that on 7 March 2010 the Respondent had responded to its letter, refusing to refund the amount in question. 11. In light of the above, the Claimant deemed that the Respondent had unjustly enriched itself in the amount of USD 150,000, and that, according to art. 62 of the Swiss Code of Obligations, such amount should be returned to the Claimant. Furthermore, the Claimant argued that it should also be compensated by the Respondent for “all existing further damages”, such damages representing the amount paid to the player as sign-on fee at the start of his contract. 12. In continuation, the Claimant stated that in light of the above-mentioned facts the parties had “on 28 January 2010 entered by and between them into a contract concerning the loan transfer of the player until 31 May 2010”. However, the Claimant argued that this contract should be considered null and void, due to the Respondent’s impossibility to fulfil its obligations towards the Claimant at the moment of its conclusion, i.e. “to release the Player in order that he could legitimately participate as eligible player in official matches for the Claimant during the sportive season 2009/2010”. 13. Furthermore, the Claimant pointed out that from the content of the ”Loan Contract” it was clear that the parties had agreed to its conclusion “only provided the Player’s eligibility to play for the Claimant during the loan period within official matches”, i.e. until the end of the 2009/2010 sporting season. The Claimant therefore argued that according to art. 20 par. 1 of the Swiss Code of Obligations, “a contract providing -already at the time of its conclusion- for impossibility shall be considered null and void” and that, consequently, the Respondent should not be entitled to any transfer fee. 14. In the alternative, and should it be decided that the loan contract is not null and void, the Claimant argued that it should not be bound by it due to its valid rescission executed by means of correspondence dated 15 February and 2 March 2010. In this respect, the Claimant argued that when concluding the contract it “was acting under a material error pursuant to art. 23 and 24 par. 1 lit. 4 of the Swiss Code of Obligations and, therefore, can duly rescind it with the consequence of not being bound by it”. 15. In continuation, the Claimant further stated that, when entering into the loan contract, it had “duly, considered the fact of the Player’s eligibility to play with it during the loan period within official matches during the sportive season 2009/2010 as necessary basis of the Loan Contract in accordance with the principle of good faith in the course of business”. In this context, the Claimant argued that “emphasis must be given, especially, thereon that the Respondent did not explain to the Claimant at any time, neither during the relevant negotiations nor at the time of the Loan Contract’s conclusion, about the fact that the Player already had played during the sportive season 2009/2010 for two different clubs within official matches despite of its positive knowledge on this aspect and despite that the Claimant have given emphasis thereon that it needed a new player during the remaining period of the sports season 2009/2010 for sportive reasons”. 16. As a consequence of the above, the Claimant argued that it had entered into the relevant agreement due to the fact that the Respondent had not disclosed that the player had already played official matches for two different clubs during the 2009/2010 sporting season. 17. In light of all the above, the Claimant requested FIFA to condemn the Respondent to:  “pay in its favour an amount equal to USD 237,000”.  “compensate it for any future damage, if any”.  “pay any and all costs related to the present proceedings, if any” “IN THE ALTERNATIVE”  “pay in its favour an amount equal to USD 150,000”. 18. On 29 April 2010, the Respondent provided FIFA with its response to the claim. In this respect, the Respondent argued that it had concluded an employment contract with the player on 28 August 2009, prior to the beginning of the football season in country T , “but in fact Club S had no idea about the commencement of the 2009/2010 sport season in country E”. 19. Furthermore, the Respondent held that at the time it had agreed on the transfer of the player with Club L , the latter had not informed it about the player’s participation in the team’s football matches during the 2009/2010 sporting season in Country E. 20. Moreover, according to the Respondent, the ITC issued by the Football Association of Country E did not contain any comments or reference “to the contribution of the said player with Club L […] in addition to that the player himself did not notify Club S whether he participated with country E’s Club L in any matches in the same season or not”. 21. In continuation, the Respondent acknowledged that, at the insistence of the Claimant, it had agreed to transfer the player on a loan basis to the latter until the end of the 2009/2010 sporting season in return of USD 150,000. 22. The Respondent further argued that it was the Claimant’s responsibility to check whether the player was eligible to play with it in the 2009/2010 sporting season and “therefore Club S shall not be obliged with any legal obligations that binding it to check the competence of the player to participate with any other club”, mainly, considering that it was not aware of the player’s participation in official matches with Club L in the 2009/2010 sporting season. 23. With regard to the loan fee amounting to USD 150,000, the Respondent held that the Claimant was not entitled to claim it back for the following reasons:  Neither the Claimant nor the FA of Country B had checked that the player was indeed eligible to play;  The Claimant “got benefited from the efforts of the player through the football matches in which he participated with its football team”;  The Claimant had deprived the Respondent of the services of the player for the remainder of the 2009/2010 sporting season;  The transfer of the player to the Claimant had forced the Respondent to hire an alternative player;  “it will be a violation to re-register the player in the FA of Country T out of a registration period and therefore cannot play in the sports season 2009- 2010 as he is already registered with Club A in the same season”. 24. In addition, the Respondent argued that the amount paid by the Claimant “was against the fact that Club S released the player on loan period and not for his participation with the team, since the club is entitled for loan remuneration against not utilizing the effort of one of its players seconded by another team”. 25. Finally, the Respondent argued that in light of all the above, together with the fact that it had lost the player for the rest of the 2009/2010 sporting season, it had the right to keep the loan fee amounting to USD 150,000. Thus, the Respondent asked FIFA to reject the Claimant’s claim. 26. On 28 September 2010, the Claimant presented its comments to the Respondent’s response. In this respect and first of all, the Claimant argued the Respondent should have known that Club L had used the player in an official match during the relevant season and that “in the same sense the Claimant knew that the Player had participated in official matches with the Respondent, it seems totally unreasonable that the Respondent had not been acquainted with the respective information accordingly related with the participation of the Player with club L ”. 27. In continuation, the Claimant stressed that “it appears absolutely necessary to examine the intention of the contracting parties, and in particular in the light of the eligibility of the Player as condition sine qua non for the conclusion of the loan transfer. In this view, it is clear that the eligibility of the Player was the ‘core’ of the conclusion of the loan agreement, in other words, was the essential basis upon which the Claimant based his decision to engage the services of the Player for such a short term”. 28. On 1 November 2011, the Respondent presented its final comments to the Claimant’s last submission and adhered to its previous statements. In addition, the Respondent referred to the Claimant’s letter dated 28 January 2010 and argued in this respect that the “request was void of any other requests related to the loan except the condition of passing the medical test, this means that both Club A and its Association have investigated the liability of the player to participate in its official Matches and training”. 29. Finally, by means of a letter dated 19 June 2012 sent via the FA of Country T, the Respondent informed FIFA that the player had played for it for “The remaining period: for the season of 2009-2010”. 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, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the 2008 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber in connection with art. 23 par. 1 and 3 as well as art. 22 f) of the 2010 edition of the Regulations on the Status and Transfer of Players, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to different associations. 2. Furthermore, the Single Judge analysed which Procedural Rules are applicable to the matter at hand. In this respect, he referred to art. 21 par. 2 and 3 of the 2008 edition 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 31 March 2010, the Single Judge concluded that the 2008 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. 3. Subsequently, 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 2010 and 2009 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 31 March 2010. In view of the foregoing, the Single Judge concluded that the 2009 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) is applicable to the case at hand as to the substance. 4. His competence 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. In doing so, the Single Judge noted that on 28 January 2010 the parties to the dispute had agreed to transfer the player from the Respondent to the Claimant on a loan basis until the end of the sporting season (i.e. until 31 May 2010) for a total amount of USD 150,000 as loan compensation. 6. Moreover, the Single Judge acknowledged that on 1 February 2010, the Claimant had paid the amount of USD 150,000 as loan fee to the Respondent and that on the same date the Claimant and the player had concluded an employment contract involving the payment of a signing-on fee of USD 87,000 in favour of the latter. 7. Furthermore, the Single Judge noted that on 18 February 2010, the FA of Country B had provisionally suspended the registration of the player with its affiliated club, i.e. the Claimant, taking into account that the player had already been registered with two other clubs during the relevant sporting season and had played official matches for the said clubs. 8. In continuation, the Single Judge acknowledged the positions of both parties. On the one hand, the Claimant argued that the Respondent should reimburse the amount of USD 150,000 paid as loan fee as well as pay an additional amount as compensation since it was the Respondent´s obligation to inform the Claimant that the player was ineligible to play during the relevant sporting season and, on the other hand, the Respondent alleged that it was the Claimant´s responsibility to check the sporting career of the player and as a consequence it does not have to reimburse any amount to the Claimant. 9. In this respect, and as a preliminary remark, the Single Judge deemed appropriate to underline that, as a general rule, it is the obligation of the club which is interested in acquiring the services of a particular player to act with due diligence when verifying whether or not the player in question can be registered with it and be eligible to play for it and this, in particular, when the player is transferred in the middle of the sporting season. In other words, the potential new club of a player should carefully check for which club(s) the player was registered and played official matches during the relevant sporting season so as to make sure that he can be registered and be eligible to play official matches with his new club. 10. For the sake of good order, and while referring to the argument of the Claimant that the ITC of the player unambiguously stated that he was “free to pursue sports activities and register with another association affiliated to FIFA”, the Single Judge was eager to stress that the wording used in an ITC is purely formalistic and cannot set aside the obligation of the new club to act with the required due diligence in establishing the player’s previous registrations and sporting career. 11. Notwithstanding the above, the Single Judge took note that based on the information on file and the statements provided by the Respondent during the investigation of the matter at stake, after the registration of the player with the Claimant was suspended by the FA of Country B , the player had come back and played for the Respondent for the remainder of the 2009/2010 sporting season. In particular, the Single Judge referred to the letter dated 19 June 2012 from the Respondent in which the latter had confirmed the aforementioned fact. 12. In this context, the Single Judge was keen to emphasise that according to the long standing and well-established jurisprudence of the Players’ Status Committee in similar matters, in case a player is transferred from one club to another for a predetermined period, but returns to his previous club prior to the expiry of this period or does not play at all for his new club, it is fair and reasonable to reduce or even cancel the relevant payment obligation which was initially agreed upon. 13. Consequently, in view of the fact that the loan of the player was agreed between the parties on 28 January 2010 but his registration was suspended by the FA of Country B on 18 February 2010 as well as taking into account that the player returned to the Respondent for the remaining part of the 2009/2010 sporting season, the Single Judge deemed that the amount of USD 150,000 paid as loan compensation by the Claimant to the Respondent should be reimbursed by the former to the latter. 14. In continuation and with respect to the Claimant´s request for USD 87,000 as additional compensation, and taking into account, as previously mentioned, that the Claimant had not acted with the required due diligence in verifying whether the player was eligible to play or not and taking into account that the requested amount solely related to the contractual relationship entered into between the Claimant and the player, the Single Judge held that the said compensation should not be granted. 15. 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 the proceedings before the Players´ Status Committee, including its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties´ degree of success in the proceedings and are normally to be paid by the unsuccessful party. 16. In this regard, the Single Judge reiterated that the Claimant’s request is partially accepted. Therefore, the Single Judge concluded that the Claimant and the Respondent have to bear the costs of the current proceedings before FIFA. 17. 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. The amount in dispute to be taken into consideration in the present proceedings is of USD 237,000. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 18. Considering the amount of submissions that had to be analysed during the course of the present matter, the Single Judge determined the costs of the current proceeding to the amount of CHF 20,000. 19. In conclusion, the Single Judge decided that the amount of CHF 8,000 has to be paid by the Claimant and the amount of CHF 12,000 by the Respondent, to cover the costs of the present proceedings. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club A, is partially accepted. 2. The Respondent, Club S, has to pay to the Claimant, Club A, the amount of USD 150,000, within 30 days as from the date of notification of this decision. 3. If the aforementioned sum is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claims lodged by the Claimant, Club A, are rejected. 5. The final amount of costs of the proceeding amounting to CHF 20,000 are to be paid, within 30 days as from the date of notification of the present decision, as follows: 5.1 CHF 12,000 by the Respondent, Club S. 5.2 CHF 8,000 by the Claimant, Club A. Given that the latter already paid the amount of CHF 5,000 as advance of costs at the beginning of the present proceedings, the Claimant, Club A, has to pay the remaining amount of CHF 3,000. 5.3 The above-mentioned amounts of CHF 12,000 and CHF 3,000 have to be paid to FIFA to the following bank account with reference to case no. mdo/10- 01354: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 6. The Claimant, Club A, is directed to inform the Respondent, Club S, directly and immediately of the account number to which the remittance under point 2 above is to be made and to notify the Players’ Status Committee of every payment received. Note relating to the motivated decision (legal remedy): According to art. 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