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 29 July 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club C, from country T as Claimant against the club Club S, from country V as Respondent regarding a contractual dispute between the parties relating to the player W

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 29 July 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club C, from country T as Claimant against the club Club S, from country V as Respondent regarding a contractual dispute between the parties relating to the player W I. Facts of the case 1. On 3 January 2012, the club of country T, Club C (hereinafter: the Claimant), and the country V club, Club S (hereinafter: the Respondent) concluded a loan agreement by means of which the player, Player W, was to be loaned from the Claimant to the Respondent until 31 March 2012. 2. Art. 2 of the loan agreement reads as follows: “[the Claimant] agrees to provide [the Respondent] the ability to receive a loan transfer for the services of the Player (…) for a loan transfer fee of 10.000 U.S. (…) which shall be payable immediately by bank transfer to [the Claimant] upon receipt of the International Transfer Certificate (ITC) by the country V Football Federation. (…)”. 3. On 7 February 2012, the Claimant lodged a claim in front of FIFA against the Respondent for breach of the loan agreement requesting the payment of USD 10,000. The Claimant explained that the Respondent was the party responsible for ensuring that the player’s ITC was requested and processed prior to the closure of the registration period, however, the Respondent had neglected to do so. Therefore, the Claimant indicated it was without the services of the player while “the club and the country C Football Federation attempted to rectify the matter with FIFA”. 4. The Claimant further explained that 3 January 2012 was the last day of the registration period of the country V Football Federation and that, on that day, both clubs uploaded the relevant information on the Transfer Matching System (TMS), however, the representative of the Respondent failed to contact their association’s TMS manager on time. On 6 January 2012, the Respondent requested FIFA’s intervention to authorize the transfer of the player, however, to no avail. 5. In reply to the claim lodged against it, the Respondent stated that “both club was not successful and did not completed this transfer because both club inserted transfer instructions in TMS in the evening of the last day of registration period”. The Respondent indicated it had communicated to the Claimant that the TMS instructions should be completed before 5:00 PM on 3 January 2012, but the Claimant insisted on receiving a document to “request his player come back country T to participate Olympic team”. Since the drafting of such document took a long time, the clubs inserted the instructions in TMS only 2 hours before midnight and, thus, 2 hours before the registration period closed. The Respondent indicated that the country V Football Federation does not work at night and added that the Claimant had agreed that the loan “shall not have values” in case the ITC was not issued. 6. Furthermore, the Respondent indicated that the player was aware of all the aforementioned and “signed agreement with us that the Contract only has value if ITC completed”. In this context, the Respondent submitted the following two documents: - “Pre-Agreement before signing labour contract” signed by the player and the Respondent which, inter alia, reads that “Both parties agree that in the case of that (with any reasons) if my ITC can not issue and send to country V Football Federation from country T, then the labour contract which I signed with [the Respondent] shall not have its validity. And I agree that I shall only receive my salary if my ITC arrive country V Football Federation and my labour contract has its validity”. - “Minutes of termination labour contract”, a document signed by the player by means of which he, inter alia, confirmed that the Respondent paid his air ticket, he received 5.000.000 currency of country V as pocket money and was provided with accommodation. 7. In its replica, the Claimant stressed that the TMS transaction was completed by both clubs hours before the closure of the transfer window and that the Respondent simply failed to communicate to the country V Football Federation that it was processing a transfer. In this respect, the Claimant enclosed several e-mails, one of which dated 4 January 2012, apparently sent by a representative of the Respondent, which reads: “(…) The lady in TMS country V Football Federation was not there (her office) last night. But she told me is my fault. It is correct that I nod call her. But they never remind us (clubs) must call them before deadline (time close) (…)”. In the Claimant’s view, the aforementioned clearly establishes that the Respondent admits its failure. 8. Moreover, the Claimant indicated that the player had no recollection of signing the documents specified in point I./6. above. Therefore, the Claimant questioned the validity of said documents. 9. In its duplica, the Respondent submitted the original documents specified under point I./6. above, referred to the short time frame in which the transfer had to be arranged and stressed that it was agreed in the loan agreement as well as in the agreement signed with the player that the loan fee would only be paid if the ITC was issued. 10. On 12 January 2012, FIFA informed the currency of country V that it was not in a position to grant the latter’s request for the special exemption from the “validation exemption” in TMS, considering i) that 3 January 2012 was the last day of the currency of country V’s registration period, and ii) that it had only requested the player’s ITC on 6 January 2012. 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 7 February 2012, thus after 1 July 2008, but prior to 1 December 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 7 February 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 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 the Claimant, being of the opinion that a valid loan agreement had been concluded with the Respondent, was claiming the amount of USD 10,000 from the latter, in accordance with the loan fee stipulated in the loan agreement dated 3 January 2012, stressing that the Respondent was the party responsible for the failure to obtain the player’s ITC. 6. The Respondent nevertheless refuted that the loan compensation was due to the Claimant, mainly pointing out that both parties had been responsible for the failure of the transfer, i.e. for the failure to obtain the player’s ITC within the registration period. 7. In this respect, the Single Judge first turned to the content of the loan agreement and duly noted that it was agreed upon between the parties that the Respondent would pay the Claimant the amount of USD 10,000 for the loan of the player, payable upon receipt of the ITC by the country V Football Federation. 8. In continuation, the Single Judge duly noted that it was not disputed between the parties that the ITC of the player was not requested within the relevant transfer period in country V and, thus, the ITC was never issued. The Single Judge thus observed that the main question that needs to be answered in the present matter is which party is responsible for the non-issuance of the ITC. 9. In this respect, the Single Judge was eager to point out that, whenever a player is transferred to another club, it is in principle the responsibility of the acquiring club (i.e. the new club) to make sure that the mandatory documents are properly uploaded into TMS so that the player can be registered with its respective association. In this respect, the Single Judge referred to art. 8.2 par. 1 of Annexe 3 of the Regulations, which provides, inter alia, that “When entering the relevant data, depending on the selected instruction type, the new club shall upload at least the following documents into TMS: (…)”. 10. Furthermore, art. 8.2 par. 2 of Annexe 3 of the Regulations states that upon notification in the system that the transfer instruction is awaiting an ITC request, the new association shall immediately request the former association through TMS to deliver an ITC for the professional player. Equally, in line with art. 8.1 par. 2 of Annexe 3 of the Regulations, the ITC request must be submitted via TMS, at the very latest, on the last day of the registration period of the new association. 11. With this in mind, the Single Judge emphasised that, in the matter in hand and as confirmed by FIFA in its letter dated 12 January 2012 sent to the country V Football Federation, said federation had failed to request the ITC of the player, at the latest, on the last day of the relevant registration period fixed by the country V Football Federation, i.e. 3 January 2012. 12. Furthermore, the Single Judge noted the content of the e-mail dated 4 January 2012 sent by the Respondent to the Claimant, by means of which the former had informed the latter that “The lady in TMS country V Football Federation was not there (her office) last night. But she told me is my fault. It is correct that I nod call her. But they never remind us (clubs) must call them before deadline (time close)”. In the opinion of the Single Judge, it was clear that the Respondent had failed to inform the country V Football Federation that the relevant loan was in the process of being finalized, herewith recognizing that it had not acted with due diligence by not taking the necessary precautionary steps to request the ITC for the player within the registration period. 13. Having established the above, the Single Judge emphasized that, considering the particular circumstances of the present matter, no fault could be reproached on the Claimant, i.e. the failure of the Respondent to inform the country V Football Federation about the last-minute transfer could not be held against the Claimant, the latter having no influence on the communication between the Respondent and the country V Football Federation. 14. On account of the above-mentioned considerations, the Single Judge concluded that the player had not been able to register with the Respondent due to the Respondent’s own fault and that, therefore, the Respondent is liable for the damage suffered by the Claimant. 15. Turning to the argument of the Respondent that it was agreed upon in the loan agreement as well as in the agreement signed with the player that the loan compensation would only be payable if the ITC was issued, the Single Judge pointed out, once again, that the only reason why the ITC was not issued, was the Respondent’s lack of due diligence. 16. On account of the above, 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, and taking into account the claim of the Claimant, the Single Judge decided that the Respondent has to pay to the Claimant the amount of USD 10,000. 17. 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). 18. In respect of the above, and taking into account that the claim of the Claimant had been accepted, the Single Judge concluded that the Respondent has to bear the full costs of the current proceedings before FIFA. 19. 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 USD 10,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 5,000. 20. In conclusion, and considering that the case at hand did pose various particular factual difficulties, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 4,000. Moreover, 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 4,000 has to be paid 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 C., is accepted. 2. The Respondent, Club S, has to pay to the Claimant the amount of USD 10,000 within 30 days as from the date of notification of this decision. 3. In the event that the aforementioned sum is not paid within the stated time limit, interest at the rate of 5 % p.a. will fall due as of expiry of the aforementioned deadline and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. The final costs of the proceedings in the amount of currency of country H 4,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows: 4.1. The amount of currency of country H 3,000 has to be paid to FIFA to the following bank account with reference to case nr. XX-XXXXX: 4.2. The amount of currency of country H 1,000 has to be paid directly to the Claimant. 5. 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 4.2. 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