F.I.F.A. – Commissione per lo Status dei Calciatori (2013-2014) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2013-2014) – 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 28 August 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club B, from country N as Claimant against the club, Club A, from country I as Respondent regarding a contractual dispute between the parties and relating to the player E

F.I.F.A. - Commissione per lo Status dei Calciatori (2013-2014) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2013-2014) – 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 28 August 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club B, from country N as Claimant against the club, Club A, from country I as Respondent regarding a contractual dispute between the parties and relating to the player E I. Facts of the case 1. On 31 January 2011, Club B, from country N (hereinafter: the Claimant) and Club A, from country I (hereinafter: the Respondent) concluded a transfer agreement (hereinafter: the agreement) for the definitive transfer of the player E (hereinafter: the player) from the Claimant to the Respondent. 2. The agreement provided that a transfer compensation for a total amount of EUR 1,750,000 was to be paid by the Respondent to the Claimant in three instalments, thereof the amount of EUR 500.000 payable on 15 February 2011, the amount of EUR 500,000 on 10 August 2011 and the amount of EUR 750,000 on 15 January 2012. In addition, the agreement stipulated the following: o “[The Respondent] confirm that the payment plane will be guaranteed from the bank guaranteed, that it will be issued in 48/72 hours after the signed of this agreedment. o [The Respondent], in case of sell of the player, will give to [the Claimant] the 20%. This 20% will be calculated without Euro 1.750.000,00” 3. On 24 March 2011, the Claimant lodged a claim with FIFA against the Respondent and, after amending its claim several times, requests from the latter the total amount of EUR 950,000, representing: - EUR 300,000 from the first instalment plus unspecified interest, - EUR 500,000 from the second instalment plus unspecified interest, - 20% of the transfer compensation exceeding EUR 1,750,000 equalling EUR 150,000 and - unspecified interest related to the amount of EUR 200,000 from the first instalment, which fell due on 15 February 2011 and was received by the Claimant on 3 June 2011. 4. In its position, the Claimant stated that on 18 August 2011, the player was transferred from the Respondent to the Club P, from country U (hereinafter: Club P) for the alleged transfer amount of EUR 2,500,000. According to the sell-on clause in the transfer agreement, the Claimant is entitled to receive 20% of the transfer compensation exceeding EUR 1,750,000. 5. In light of this, the Respondent held that it concluded a separate agreement with Club P in which it was allegedly agreed that, “(…) on account of the legal action indicated by [the Claimant] against [the Respondent] for non-compliance of the transfer contract dated 31st January 2011, Club P shall pay on [the Respondent]’s behalf the amount of EUR 800’000 owed to [the Claimant] through The country U Football Association.” As stated by the Respondent, the Claimant allegedly would agree to this modus operandi. 6. In its reply thereto, the Claimant provided an email dated 16 March 2011, in which the Respondent informed the Claimant about its financial difficulties and asked the Claimant to accept the first instalment of the transfer compensation to be divided into three further instalments of “€ 200.000,00 not later than 10th April, €150.000,00 not later than 10th May [and] € 150.000,00 not later than 10th June”. This was declined on 17 March 2011 by the Claimant via email. 7. In addition to that, the Claimant states that the bank guarantee which was stipulated in the transfer agreement was apparently never executed by the bank. On 5 May 2011, the Claimant received a statement from the country I bank, stating “that our bank never has executed any bank guarantee in favour of your selves. Neither have we received any formal application to our bank from [the Respondent].” 8. In its reply, the Respondent declared that it wanted to pay the first instalment of EUR 500,000 in two instalments. In this regard, the Respondent proposed that “[w]ithin Tuesday 17 may, will pay Euros 200.000,00 to [the Claimant], and the difference (Euros 300.000,00), will be pay within 30 june”. 9. On 20 June 2011, the Claimant confirmed that it received a partial payment of the first instalment in the amount of EUR 200,000, and maintained that according to contract law the Claimant shall be entitled “to claim the full amount due for immediate payment.” 10. In a separate claim in front of FIFA, the Claimant requests the delivery of the ITC for the player to the Claimant, as the “contract between [the Claimant and the Respondent], the mutual understanding between [the Claimant] and the player releasing him from his employment contract with [the Claimant] and the ITC request, are all subject to and conditioned by [the Respondent] paying the agreed compensation. (…) In the event of termination due to the particulars of this case, the implication thereof should be that the ITC issued and the registration made in country I should be considered null and void and/or has to be reverted. (…) [The Claimant]’s primary interest now is to re-establish the employment with the player, and to have him on the team as soon as possible, next match is June 10.” 11. In its replica, the Respondent stresses the fact that “(…) no breach condition is inserted into the transfer agreement, neither about bank guarantee, nor about the payment deadlines. Furthermore no interest rate is fixed in case of delayed payment.” However, the Respondent again indicates that it will pay the remaining EUR 300,000 still due for the first instalment of the transfer compensation no later than end of July. 12. Furthermore, as for the Claimant’s request for the player to be registered again with it, the Respondent states that it doesn’t contain any request as to the substance of the claim to receive transfer compensation. Therefore, any request regarding the delivery of an ITC should be deemed inadmissible. 13. To this, the Claimant holds that, according to Norwegian law which is supposed to be applicable in this case, as the place for the payment was city B/country N in the agreement, the Claimant is entitled to default interest on any overdue payment. Additionally, as the late payment and the non-provision of the obligatory bank guarantee constitute a material breach of contract, the Claimant should be entitled to claim the total transfer amount to be paid in full, or to terminate the agreement. 14. In spite of having been asked to do so, the Respondent did not provide FIFA with its final position to the claim of the Claimant. 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 are applicable to the matter at hand. In this respect, he referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008). The present matter was submitted to FIFA on 24 March 2011, thus after 1 July 2008. Therefore, the Single Judge concluded that the 2008 edition of the Procedural Rules (hereinafter: 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 2010 and 2012 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 24 March 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 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. In this respect and first of all, the Single Judge established that it was undisputed between the parties that they concluded an agreement on 31 January 2011 regarding the transfer of the player from the Claimant to the Respondent. In this context, the Single Judge acknowledged that the parties agreed upon a total transfer compensation of EUR 1,750,000, thereof the first instalment of EUR 500,000 payable on 15 February 2011, the second instalment of EUR 500,000 payable on 10 August 2011 and the third instalment of EUR 750,000 payable on 15 January 2012. 6. In addition, the Single Judge noted that the agreement, inter alia, stipulated the obligation of the Respondent to provide a bank guarantee to secure the payment plan for the instalments of the above-mentioned transfer compensation within two to three days after the signing of the agreement. Moreover, the Single Judge acknowledged that the agreement also contained a sell-on-clause, giving the Claimant the right to receive 20% of the transfer compensation exceeding the amount of EUR 1,750,000 which would be paid to the Respondent by a third club in case of a subsequent transfer of the player. 7. Furthermore, the Single Judge took note that, according to the Claimant, on 18 August 2011 the player was transferred from the Respondent to Club P against payment of a transfer compensation amounting to EUR 2,500,000, an amount which was never disputed by the Respondent, thus giving the Single Judge no option but to consider said amount as an accepted fact. 8. In continuation, the Single Judge acknowledged that on 3 June 2011, the Claimant received an amount of EUR 200,000 from the Respondent with regard to the first instalment of the agreement, which fell due on 15 February 2011. 9. Having established the contractual and factual basis for this dispute, the Single Judge recalled that on 24 March 2011, the Claimant lodged a claim with FIFA against the Respondent and, after amending its claim several times, requested from the latter the total amount of EUR 950,000, corresponding to: - EUR 300,000 from the first instalment plus unspecified interest, - EUR 500,000 from the second instalment plus unspecified interest, - 20% of the transfer compensation exceeding EUR 1,750,000 equalling to EUR 150,000 and - unspecified interest related to the amount of EUR 200,000 from the first instalment, which fell due on 15 February 2011 and was received by the Claimant on 3 June 2011. 10. This being established, the Single Judge deemed appropriate to emphasize that the Claimant did not request payment of the third instalment of the agreement, i.e. the amount of EUR 750,000 due on 15 January 2012. 11. Subsequently, the Single Judge took note that the Respondent asserted that it agreed with Club P that the latter club committed itself to pay the amount of EUR 800,000 to the Claimant on behalf of the Respondent and that the Claimant had agreed to this modus operandi. However, the Single Judge took note that the Respondent did not provide any evidence for this allegation. Consequently, and also bearing in mind that the Respondent was the contractual partner of the Claimant and not Club P, the Single Judge found no basis for concluding that it was not the Respondent who had the obligation to pay the relevant amounts as stipulated in the agreement between the Claimant and the Respondent. 12. Furthermore, the Single Judge acknowledged that on 16 March 2011, the Respondent via email proposed to the Claimant an alternative payment plan for the first instalment which was declined by the Claimant via email on 17 March 2011. Thus, without such an amendment to the agreement being reached by the parties, the Single Judge emphasized that the due dates of the relevant payments remained as set out in the agreement. 13. Moreover, the Single Judge took note that the Claimant also referred to a different claim it pursued in front of FIFA regarding the issuance of the ITC for the player in order for him to be registered again with the Claimant. However, the Single Judge found it unnecessary to look into this question, stressing that the subject of consideration in the present proceedings was only the agreement and the question whether the Respondent had the obligation to pay any amounts to the Claimant based on said agreement. Furthermore, the Single Judge highlighted that the validity of the registration with the Respondent only depended on the compliance with the relevant provisions regarding the administrative procedure for the international transfer of players (cf. art. 9 and art. 8 of Annexe 3 of the Regulations), which is not questioned in the present matter. 14. 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, taking into account the claim of the Claimant and recalling the contents of the agreement, however also considering that the Respondent has paid the amount of EUR 200,000 to the Claimant on 3 June 2011, the Single Judge decided that the Respondent has to pay to the Claimant the outstanding amount of EUR 950,000, consisting of the outstanding transfer compensation of EUR 800,000 as well as the amount of EUR 150,000 derived from the sell-on-clause. 15. Pertaining to Claimant’s requests for interest on the amounts requested (cf. point I.3, list items 1 and 2), the Single Judge thought to emphasise that the Claimant did not specify as of when interest was to be calculated. Moreover, the Single Judge acknowledged the argument of the Claimant that, based on the fact that the place for payment was stipulated as city B/country N in the agreement, country N law was applicable to this case. Therefore, and in accordance with country N contract law, as a consequence of the alleged breach of contract by the Respondent the full amount of outstanding transfer compensation should have fallen due immediately. However, not only did the Respondent fail to substantiate its argument in relation to the applicable law, but the Single Judge also insisted that, anyhow, the above-mentioned clause only established the place of jurisdiction. Therefore, the law applicable to the case could not be deemed to be country N contract law but only the Regulations. Consequently, the Single Judge decided that the relevant amounts from the agreement had not fallen due immediately when the Respondent came in default of payment, in particular, since no such consequence was provided for in the agreement. 16. In light of this, the Single Judge decided that regarding the outstanding amount of EUR 300,000 from the first instalment of the agreement, interest at a rate of 5% p.a. had to be paid as of the date when the claim was lodged, i.e. as of 24 March 2011. Regarding the second instalment of EUR 500,000, the Single Judge took note that said instalment fell due on 10 August 2011, i.e. after the claim was lodged. Therefore, the Single Judge decided that the Respondent had to pay interest at a rate of 5% p.a. on said amount as of 11 August 2011. 17. Regarding the delayed payment of the amount of EUR 200,000 from the first instalment of the transfer compensation, the Single Judge recalled that said instalment fell due on 15 February 2011 and was paid on 3 June 2011. As a consequence of the above, the Single Judge decided that the Respondent had to pay interest at a rate of 5% p.a. on the amount of EUR 200,000 as of 16 February 2011 until 3 June 2011. 18. In conclusion, the Single Judge decided to accept the Claimant’s claim, and established that the Respondent had to pay to the Claimant the total amount of EUR 800,000 based on the outstanding amounts from the transfer compensation, the amount of EUR 150,000 based on the sell-on-clause as well as interest on the amount of EUR 200,000 for the period of 16 February 2011 until 3 June 2011, due to the delayed payment of said amount. 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 this respect, the Single Judge reiterated that the claims of the Claimant are accepted. Therefore, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings in front of FIFA. 21. 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. 22. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 950,000 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000 (cf. table in Annexe A.) 23. Considering the factual difficulty of the case, but also considering that it was adjudicated upon by the Single Judge and not the Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 20,000. Consequently, the Single Judge decided that the amount of currency of country H 20,000 has to be paid by the Respondent, thereof, bearing in mind that the Claimant had paid the amount of currency of country H 5,000 as advance of costs at the beginning of the present proceedings, the amount of currency of country H 5,000 directly to the Claimant and the amount of currency of country H 15,000 to FIFA. ***** III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club B, is accepted. 2. The Respondent, Club A, has to pay to the Claimant, Club B, within 30 days as from the date of notification of this decision, the amount of EUR 800,000 plus interest at a rate of 5% p.a. until the date of effective payment as follows: - on the amount of EUR 300,000 as of 24 March 2011, - on the amount of EUR 500,000 as of 11 August 2011. 3. The Respondent, Club A, has to pay to the Claimant, Club B, within 30 days as from the date of notification of this decision, interest at a rate of 5% p.a. on the amount of EUR 200,000 as from 16 February 2011 until 3 June 2011. 4. If the aforementioned sums (cf. point 2. and 3.) plus interest are 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. 5. The Respondent, Club A, has to pay to the Claimant, Club B, the amount of EUR 150,000, within 30 days as from the date of notification of this decision. 6. 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 time-limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee, for consideration and a formal decision. 7. The final amount of costs of the proceedings in the amount of currency of country H 20,000 is to be paid by the Respondent, Club A, within 30 days as from the notification of the present decision as follows: 7.1 The amount of currency of country H 15,000 has to be paid to FIFA to the following bank account with reference to case nr.: 7.2 The amount of currency of country H 5,000 has to be paid directly to the Claimant, Club B. 8. The Claimant, Club B, is directed to inform the Respondent, Club A, immediately and directly of the account number to which the remittances are to be made 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 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