F.I.F.A. – Commissione per lo Status dei Calciatori (2014-2015) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2014-2015) – 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 20 November 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club C, from country B as Claimant against the club, Club L, from country U as Respondent regarding a contractual dispute between the parties and relating to the transfer of the player A

F.I.F.A. - Commissione per lo Status dei Calciatori (2014-2015) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2014-2015) – 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 20 November 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club C, from country B as Claimant against the club, Club L, from country U as Respondent regarding a contractual dispute between the parties and relating to the transfer of the player A I. Facts of the case 1. On 3 May 2010, Club C, from country B (hereinafter: the Claimant) and Club L, from country U (hereinafter: the Respondent), concluded a loan agreement (hereinafter: the agreement) for the loan of the player A (hereinafter: the player), from the Claimant to the Respondent. 2. Said loan agreement stipulated inter alia a purchase option allowing the Respondent to permanently acquire the player’s registration from the Claimant against the payment of USD 200,000, which was exercised by the Respondent in December 2010. Moreover, the agreement, in its clause 7, stipulated the following “sell-on-clause”: “[The Respondent] undertakes to ensure the 40% (forty percent) of the economic rights of the [player] held by [the Claimant] in case of transfer of the [player] to any other organization.” 3. Subsequently, the Respondent and the player signed an employment contract valid as from 17 December 2010 and throughout three years. 4. On 20 January 2011, the Respondent and the Club S, from country G (hereinafter: Club S) concluded a loan agreement (hereinafter: first loan agreement) for the loan of the player from the Respondent to Club S, stipulating a loan fee in the amount of EUR 200,000 payable by Club S to the Respondent. Said first loan agreement further stipulated a purchase option on behalf of Club S, indicating that “[the Respondent] hereby grants [Club S] an option right for a definitive transfer of the player from [the Respondent] to [Club S] with effect as of 1 July 2011” exercisable “by an irrevocable written declaration towards [the Respondent] until 31 May 2011” against payment of “an additional amount of EUR 2,000,000 (two million Euros) to [the Respondent] as compensation for the definitive transfer of all transfer rights and any other sportive, contractual, economical and federative rights concerning the player”. According to the information contained in the Transfer Matching System (TMS), said purchase option was not exercised by Club S. 5. Also on 20 January 2011, the Claimant and the player signed a separate declaration (hereinafter: the waiver) by means of which it was agreed by the Claimant that the percentage it was supposed to receive pertaining to clause 7 of the agreement should be lowered from 40% to 30% for the transfer of the player from the Respondent to Club S. Said declaration is duly signed by the Claimant and the player. 6. On 13 July 2012, the Respondent and the Club Z, from country Z (hereinafter: Cagliari) concluded a loan agreement (hereinafter: second loan agreement) for the loan of the player from the Respondent to Club Z against the payment of a loan fee in the amount of EUR 1,000,000, payable in two instalments of EUR 500,000 each, payable on 18 July 2012 and 31 August 2012 respectively. Furthermore, the second loan agreement provided for a purchase option on behalf of Club Z, allowing the latter club to permanently acquire the player’s registration from the Respondent against the payment of EUR 500,000, payable by Club Z to the Respondent on 30 June 2013. Said purchase option was exercised by Club Z on 31 May 2013. 7. On 3 January 2013, the Claimant lodged a claim in front of FIFA requesting the following payments from the Respondent: - EUR 80,000, representing 40% of the amount of EUR 200,000 which was paid by Club S to the Respondent in connection with the first loan agreement, - EUR 400,000, representing 40% of the amount of EUR 1,000,000 which was paid by Club Z to the Respondent in connection with the second loan agreement, - EUR 200,000, representing 40% of the amount of EUR 500,000 which was paid by Club Z to the Respondent in connection with the purchase option, - 5% interest on the above-mentioned amounts. 8. In its reply to the claim of the Claimant, the Respondent argued that clause 7 of the agreement only provides for the obligation of the Respondent make a payment in case of a transfer of the economic rights of the player to a third club. However, given that the player was only loaned to Club S and Club Z respectively, the Respondent stressed that in view of the legal nature of a loan, no economic rights have been transferred to the respective clubs. Therefore, the Respondent argued that clause 7 of the agreement has neither been triggered by the first nor the second loan agreement. 9. Furthermore, related to the percentage claimed by the Claimant, the Respondent emphasized that due to the waiver signed by the Claimant on 20 January 2011, it was agreed that the Claimant would only receive 30% pertaining to the “sell-on-clause”. Therefore, any amount eventually payable by it to the Claimant has to be reduced accordingly. 10. In its replica, the Claimant stressed that the agreement between it and the Respondent at no point specifies that only permanent transfers should be covered by the aforementioned clause 7. In this regard, the Claimant emphasized that the term “transfer” covers temporary, permanent and definitive transfers, i.e. also loans. Therefore, the Claimant held that clause 7 of the agreement was triggered by the loans of the player from the Respondent to Club S and Club Z. Furthermore, given that the agreement and the relevant clause 7 were drafted by the Respondent, any possible contradictions and ambiguities cannot be held against the Claimant, based on the principle of “contra proferentem”. 11. Moreover, the Claimant argued that the second loan agreement is in fact a transfer agreement in disguise, given that the loan fee of EUR 1,000,000 is twice as high as the actual amount stipulated in the purchase option. Since these circumstances are very uncommon and unusual, the Claimant argued that this modus operandi was “a manner found by [the Respondent] to try to fraud its obligations to pay the amount due as the so-called economic rights (“variable compensation”) to [the Claimant]”. 12. Finally, the Claimant pointed to the fact that the player in the meanwhile was permanently transferred from the Respondent to Club Z. In this regard, the Claimant stressed that the Respondent has not honored its contractual obligations as it has not yet paid 40% of the amount of EUR 500,000 to the Claimant, i.e. the amount of EUR 200,000 which fell due after Club Z made use of its purchase option. 13. In its final reply to the claim of the Claimant, the Respondent again stressed that due to the waiver signed by the Claimant on 20 January 2011, the latter club could only claim 30% of any future transfer compensation pertaining to clause 7 of the agreement. In this context, the Respondent admitted that it received the amount of EUR 500,000 from Club Z after the latter club exercised its purchase option and hence acknowledged that it has to pay the amount of EUR 150,000 to 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 were applicable to the matter at hand. In this respect, he referred to art. 21 of the 2012 and 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 3 January 2013, 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 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 2014 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 3 January 2013. 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 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 emphasized that in the following considerations he will refer only to the facts, arguments and the documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. In this respect and first of all, the Single Judge noted that on 3 May 2010 the parties concluded an agreement for the loan of the player from the Claimant to the Respondent. The loan agreement also contained an option to acquire the services of the player on a definitive basis against payment of USD 200,000, which was exercised by the Respondent in December 2010. 6. The Single Judge further noted that the agreement further stipulated that the Respondent “undertakes to ensure the 40% (forty percent) of the economic rights of the [player] held by [the Claimant] in case of transfer of the [player] to any other organization.” 7. Moreover, the Single Judge noted that on 20 January 2011, the Respondent and Club S, from country G concluded the first loan agreement for the loan of the player from the Respondent to Club S, stipulating a loan fee in the amount of EUR 200,000 payable by Club S to the Respondent. In this regard, the Single Judge also acknowledged that the first loan agreement further contained a purchase option to be exercised by Club S by 31 May 2011. However, the Single Judge took note that according to the information contained in the Transfer Matching System (TMS), said purchase option was not exercised. 8. Furthermore, the Single Judge took note of the fact that also on 20 January 2011, the Claimant and the player duly signed a waiver by means of which it was agreed by the Claimant that the percentage it was supposed to receive pertaining to clause 7 of the agreement should be lowered from 40% to 30% in connection with the transfer of the player from the Respondent to Club S. 9. Likewise, the Single Judge noted that on 13 July 2012, the Respondent and Cagliari concluded a second loan agreement for the loan of the player from the Respondent to Club Z, against the payment of a loan fee in the amount of EUR 1,000,000, payable in two instalments of EUR 500,000 each, payable on 18 July 2012 and 31 August 2012 respectively. Furthermore, the Single Judge took note that the second loan agreement provided for a purchase option on behalf of Club Z allowing the latter club to permanently acquire the player’s registration from the Respondent against the payment of EUR 500,000 payable by Club Z to the Respondent on 30 June 2013, which was in fact exercised by Club Z on 31 May 2013. 10. Having taking into account the above, the Single Judge reverted to the arguments raised by the parties and noted that the Claimant argued that the Respondent had transferred the player on three different occasions, in particular by means of a first loan agreement to Club S, by means of a second loan agreement to Club Z and then, by the exercise of the purchase option on a definitive basis to the latter club. In this context, the Single Judge further noted that the Claimant argued that it should therefore be entitled to receive the total amount EUR 680,000, composed of EUR 80,000, representing 40% of the amount of EUR 200,000 which was paid by Club S to the Respondent in connection with the first loan agreement, EUR 400,000, representing 40% of the amount of EUR 1,000,000 which was paid by Club Z to the Respondent in connection with the second loan agreement, EUR 200,000, representing 40% of the amount of EUR 500,000 which was paid by Club Z to the Respondent in connection with the definitive transfer and interest at a rate of 5% on the above-mentioned amounts. 11. Concerning the arguments raised by the Respondent, the Single Judge observed that the latter had argued in essence that the clause 7 of the agreement only provides for the obligation of the Respondent to pay an amount in case of a transfer of the economic rights of the player to a third club and that, given that the player was only loaned to Club S and Club Z respectively and in view of the legal nature of a loan, no economic rights have been transferred to the respective clubs. Therefore, the Respondent argued that clause 7 of the agreement has neither been triggered by the first nor the second loan agreement. 12. Moreover, the Single Judge noted that the Respondent argued that due to the waiver signed by the Claimant on 20 January 2011, the latter club could only claim 30% of any future transfer compensation. In addition, the Single Judge noted that the Respondent admitted that it received the amount of EUR 500,000 from Cagliari after the latter club exercised the purchase option and hence acknowledged that it has to pay the amount of EUR 150,000 to the Claimant, representing 30% of the transfer compensation in the amount of EUR 500,000. 13. Subsequently, the Single Judge noted that the Claimant indicated that the agreement between it and the Respondent at no point specifies that only permanent transfers should be covered by its clause 7 and that the term “transfer” covers temporary, permanent and definitive transfers, i.e. also loans. 14. In view of the above, and on the basis of the submissions of the Claimant and the Respondent, the Single Judge focused his attention on the following questions: - does clause 7 of the agreement only cover the definitive transfer of the player from the Respondent to Club Z, or does it also cover the loan to the latter club and the loan to Club S? - which percentage has to be applied as to the calculation of the relevant clause 7 of the agreement: 40% as stipulated in the agreement between the Claimant and the Respondent, or 30% as stipulated in the waiver? 15. As to the question whether clause 7 of the agreement only covers the definitive transfer of the player or also the precedent loans, the Single Judge recalled the exact wording of the relevant clause which stipulates that “[the Respondent] undertakes to ensure the 40% (forty percent) of the economic rights of the [player] held by [the Claimant] in case of transfer of the [player] to any other organization.” In this regard, the Single Judge noted that the relevant clause specifically refers to the eventual transfer of the player. In other words, the Single Judge acknowledged that the payment obligation by the Respondent would be triggered only in the event of the transfer of the player. Therefore, the Single Judge was of the opinion that, if the intention of the parties was to broaden the scope of the clause’s applicability, they would have explicitly included in its wording the precise kind of transfer, i.e. loan that would have triggered as well the payment obligation. 16. Based on the above, the Single Judge concluded that clause 7 of the agreement only covers the definitive transfer of the player from the Respondent to Club Z. Therefore, only the definitive transfer of the player from the Respondent to Club Z triggered such clause 7, i.e. only the transfer compensation in the amount of EUR 500,000 has to be taken into account when calculating the relevant payment obligation. 17. With this established, the Single Judge turned its attention to the question of which percentage has to be applied as to the calculation of the due amount. In this regard, he recalled that the agreement between the Claimant and the Respondent provided for a percentage of 40%. Moreover, the Single Judge looked into the wording of the waiver, which stipulates that that the percentage the Claimant was supposed to receive pertaining to the agreement should be lowered from 40% to 30% for the specific transfer of the player from the Respondent to Club S. 18. Thus, the Single Judge concluded that, given that the aforementioned reduction of the percentage of clause 7 of the agreement was solely stipulated in the waiver in connection with the loan of the player from the Respondent to Club S, the percentage of 40% as stipulated in the agreement was still applicable as to definitive transfer of the player from the Respondent to Club Z. 19. In view of all of the above, the Single Judge decided to partially accept the Claimant’s claim and concluded that the Respondent has to pay to the Claimant 40% of the amount of EUR 500,000 which was paid in connection with the definitive transfer of the player from the Respondent to Club Z, i.e. the amount of EUR 200,000. Furthermore, as to the Claimant’s request for default interest, the Single Judge, in accordance with the longstanding jurisprudence of the Players’ Status Committee, decided to award interest at a rate of 5% p.a. as of the date of when the claim was lodged, i.e. as of 3 January 2013. 20. 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). 21. Taking into account that the claim of the Claimant has been partially accepted, the Single Judge concluded that both the Claimant as well as the Respondent had to bear a part of the costs of the current proceedings before FIFA. 22. 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 680,000, based on 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. 23. Moreover, in line with his aforementioned considerations and taking into account the degree of success, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 25,000 and concluded that the amount of currency of country H 10,000 has to be paid by the Respondent and the amount of currency of country H 15,000 by the Claimant, in order 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 partially accepted. 2. The Respondent, Club L, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 200,000 plus interest at a rate of 5% p.a. as of 3 January 2013. 3. If the aforementioned amount plus interest is not paid within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. Any further claims lodged by the Claimant are rejected. 5. The final amount of costs of the proceedings in the amount of currency of country H 25,000 are to be paid within 30 days as from the notification of the present decision, as follows: 5.1. The amount of currency of country H 10,000 by the Respondent to FIFA. 5.2. The amount of currency of country H 15,000 by the Claimant to FIFA. Given that the Claimant has already paid the amount of currency of country H 5,000 as advance of costs at the beginning of the present proceedings, only the further amount of currency of country H 10,000 is to be paid by the Claimant to FIFA. 5.3. The abovementioned amounts (cf. points 5.1. and 5.2.) are to be paid to the following bank account with reference to case nr. : 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. is 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 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