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 7 May 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club X, from country F as Claimant against the club Club Z, from country S as Respondent regarding a contractual dispute between the parties relating to the player A

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 7 May 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club X, from country F as Claimant against the club Club Z, from country S as Respondent regarding a contractual dispute between the parties relating to the player A I. Facts of the case 1. On 23 August 2012, the country F club, Club X (hereinafter: the Claimant), and the country S club, Club Z (hereinafter: the Respondent), concluded a transfer agreement for the transfer of the player, A (hereinafter: the player), from the Claimant to the Respondent. 2. The aforementioned transfer agreement, which is drafted in French, stipulated, inter alia, that: “Article 3.4: Incentive to Club X on all operations related to the player It is expressly agreed that Club X will receive an incentive of 40% (FORTY PERCENT) (1) from the first euro and within the limit of 3.500.000 € of the amount of any compensation benefiting to Club Z relating to: - Any financial arrangements (fixed amount and variable amount) resulting from the signature of a permanent transfer to another club before 31/08/2013. - Any departure of the player before the expiration of his employment contract with Club Z before 31/08/2013. (…) 3.5.2 In case of disrespect of the above obligations mentioned in articles 3.3 and 3.4, no matter it would have been caused by any justifiable fact, fact of right or case of force majeure, Club Z will pay penalties to Club X consisting in both legal penalties defined below and a lump sum of 10% of the total due variable amount after more than 7 calendar days of payment delay. Legal penalties should be calculated using a 5% annual rate and should accrued on a daily basis from the due date of payment of the full due amount.” 3. On 5 February 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract indicating that the player had been transferred on a temporary basis from the Respondent to Club L on 16 August 2013 for a fixed transfer compensation of EUR 500,000. Consequently, the Claimant argued that art. 3.4 of the transfer agreement had matured, and, therefore, requested the amount of EUR 200,000 from the Respondent, as well as 10% of said amount, i.e. EUR 20,000, as a penalty for late payment stipulated in art. 3.5.2 plus 5% interest on the amount of EUR 200,000 as of 17 August 2013. 4. The Claimant stated that the wording of art. 3.4 of the transfer agreement clearly stipulates that it is applicable to “all operations related to the player”, therewith including a temporary transfer of the player to another club. The Claimant argued that if the parties had intended to apply art. 3.4 of the transfer agreement only to a definitive transfer of the player, they would have changed the wording of said provision to “incentive to Club X in case of a definitive transfer of the player”. Moreover, it is clearly stipulated in art. 3.4 that it applies to “any departure of the player before the expiration of his employment contract”, in order to extend its scope and not to deprive the Claimant from benefiting from a possible transfer of the player from the Respondent to another club. 5. On 31 March 2014, the Respondent replied to the claim lodged against it and stated that the sell-on clause of art. 3.4 of the transfer agreement was only intended to apply in the event the player was transferred on a permanent basis. The Respondent explained that, in light of the decision of the CAS (2010/A/2098 Club B v. Club C) it was the Claimant’s will to cover all three possibilities of the player being registered on a permanent basis by another club, i.e. with the Respondent’s agreement (“any financial arrangements”), without the Respondent’s agreement in case the player would exercise his right to unilaterally terminate the employment contract in accordance with the Decree 1006/85 (“any departure”, compare CAS 2010/A/2098) or by using art. 17 of the Regulations on the Status and Transfer of Players (“any departure of the player before the expiration of his employment contract with Club Z before 31/08/2013”). The Respondent argued that the transfer agreement does not at all refer to an entitlement of the Claimant in case the player was transferred on a temporary basis. 6. Furthermore, the Respondent stated that its Chief Financial Officer, Ms I, sent an email to the Scout Manager, Mr F, and the Legal and Human Resources Director of the Claimant, Mr V, in which she referred, in Spanish, to “los % que os corresponde sobre la venta”, or in English “the % which would correspond to Club X in case of sale”, to which the Financial Director of the Claimant answered by sending the revised draft of the transfer agreement without amendments or references to the sell-on clause. 7. In continuation, the Respondent referred to a decision of the Swiss Federal Tribunal (127 III 444) which established that a contract cannot be interpreted from a purely literal point of view. The circumstances surrounding the case have to be taken into consideration, and the title of a certain provision is a mere indicator of what is stipulated therein. Furthermore, the Respondent argued that the Claimant could have proposed to include the term “loan” in the sell-on clause, in case its intention was to apply the sell-on clause also to a temporary transfer of the player. In this respect, the Respondent stated that the transfer agreement was drafted by the legal representative of the Claimant and, therefore, any ambiguity in the wording of said agreement shall be construed to the detriment of the Claimant (CAS 2008/A/1518 and CAS 2007/A/1219). 8. Finally, with regard to Claimant’s request for payment of a penalty fee as well as default interest, the Respondent stated that such double compensation cannot be accepted under Swiss law, thereby referring to jurisprudence of the Swiss Federal Tribunal (ATF 122 III 53) and the Single Judge of the Players’ Status Committee (decision of 30 January 2012). 9. According to the information contained in the Transfer Matching System (TMS), the Respondent and the player concluded an employment agreement valid as from 24 August 2012 until 30 June 2016. 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 2012; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 5 February 2014, thus after 1 December 2012. Therefore, the Single Judge concluded that the 2012 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 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 5 February 2014. In view of the foregoing, the Single Judge concluded that the 2012 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. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. First of all, the Single Judge acknowledged that it was undisputed between the parties that, on 23 August 2012, a transfer agreement was concluded relating to the transfer of the player from the Claimant to the Respondent and that said agreement contained a clause regarding a conditional payment as set out above. 6. Equally, the Single Judge observed that it was undisputed between the parties that the player was transferred on loan from the Respondent to Club L in August 2013. 7. Having established the above, the Single Judge noted that the Claimant lodged a claim with FIFA against the Respondent stating that the aforementioned clause had matured when the player was transferred on loan from the Respondent to Club L, arguing that, according to the wording of the clause, “any departure of the player before the expiration of his employment contract” would trigger the clause. 8. Furthermore, the Single Judge took note that, in its reply, the Respondent stated that art. 3.4 of the transfer agreement was only intended to apply in the event the player was transferred on a permanent basis. 9. After having carefully examined the parties’ positions, taking into consideration all the aforementioned arguments, the Single Judge observed that the parties, in particular, disputed whether the clause regarding the conditional payment is applicable in the present matter where the player was transferred on a temporary basis from the Respondent to Club L. 10. First of all, with regard to such loan transfers, the Single Judge emphasized that, as a general rule, the club of origin (i.e. the Respondent) intends to recover the services of the player at the end of the loan period, given that, usually, the employment contract it signed with the player is still valid. In other words, the employment contract between the club of origin and the player is not terminated but merely temporarily suspended. 11. In this respect, the Single Judge recalled that the player was transferred on loan to Club L in August 2013, when he still had a valid employment contract with the Respondent until 30 June 2016. In view of the foregoing, the Single Judge held that the loan transfer of the player cannot be considered a “departure” triggering the payment of the conditional fee as stipulated in art. 3.4 of the transfer agreement since the employment contract concluded between him and the Respondent was not terminated but temporarily suspended. The Single Judge, in light of the remaining language of art. 3.4 of the transfer agreement, concurred that the parties had excluded a loan transfer from the scope of art. 3.4 by choosing the wording “any departure”. 12. Having established the aforementioned, the Single Judge concluded that art. 3.4 of the transfer agreement had not matured and, therefore, the Claimant is not entitled to receive the conditional payment from the Respondent. 13. 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 CHF 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). 14. In respect of the above, the Single Judge 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. 15. 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 220,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 16. In conclusion, taking into account the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000. 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 CHF 18,000 has to be paid by the Claimant. ***** III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club X, is rejected. 2. The final costs of the proceedings in the amount of CHF 18,000 are to be paid by the Claimant within 30 days as from the date of notification of the present decision to FIFA. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the amount of CHF 13,000 is to be paid to FIFA to the following bank account with reference to case nr.: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 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