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 26 August 2014, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the club Club T, from country B as “Claimant” against the club Club B, from country I as “Respondent” regarding a contractual dispute between the parties and relating to the player C.

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 26 August 2014, by Mr Geoff Thompson (England), Single Judge of the Players’ Status Committee, on the claim presented by the club Club T, from country B as “Claimant” against the club Club B, from country I as “Respondent” regarding a contractual dispute between the parties and relating to the player C. I. Facts of the case 1. On 18 July 2012, Club T, from country B (hereinafter: “the Claimant”) and Club B, from country I (hereinafter: ”the Respondent”) concluded a loan agreement (hereinafter: “the agreement”) concerning the loan of the player C (hereinafter: “the player”) from the Claimant to the Respondent for the period from 20 July 2012 until 30 June 2013 for the amount of EUR 300,000, payable according to article 1.2 of the agreement, in three instalments as follows: - EUR 100,000 “within 48 hours from the signature of the Agreement”; - EUR 100,000 “by no later than 31 December 2012”; - EUR 100,000 “by no later than 31 March 2013”. 2. Furthermore, article 1.3 of the agreement stipulated as follows: “In case of any delay in the payment or in case of payment only partial, of any of the above-mentioned instalments, a penalty fee of 20% (twenty per cent) of the amount still pending will be due, plus a 5% (five per cent) interest per annum until the date of actual and complete payment (…)”. 3. Finally, article 1.4 of the agreement provided that “In case of any delay in the payment, or in case of payment only partial, of the first or second instalments, the other instalment become due at once in favour of Club T [i.e. the Claimant], so that the latter will be entitled to the prompt and full payment by Club B [i.e. the Respondent] of any and all amounts still due”. 4. On 4 September 2013, the Claimant lodged a claim with FIFA against the Respondent for having allegedly failed to respect their contractual obligations. In this respect, the Claimant alleged that the Respondent, after having paid the amount of EUR 100,000 representing the first instalment, had subsequently failed to pay the remaining amount agreed upon in the agreement and consequently, requested from the latter the remaining amount of EUR 200,000. In this respect, the Claimant deemed that, in accordance with article 1.4 of the agreement and since the Respondent had failed to pay the second instalment due on 31 December 2012, the whole outstanding amount became due on that day. 5. In addition, the Claimant further alleged that, according to article 1.3 of the agreement, it should also be entitled to receive an additional amount of EUR 40,000, corresponding to 20% of the outstanding amount of EUR 200,000. 6. Finally, the Claimant explained that it had on several occasions tried to contact and ask the Respondent to comply with its contractual obligations to the full but apparently to no avail. 7. Consequently, the Claimant requested from the Respondent the total amount of EUR 240,000 (i.e. 200,000 [EUR 300,000 less the EUR 100,000 already received] as outstanding loan fee + 40,000 as penalty fee), plus interest at the rate of 5% per annum as from 1 January 2013. 8. Lastly, the Claimant requested from the Respondent “legal expenses in the amount of currency of country H 25,000”. 9. In its response to the claim dated 13 November 2013, the Respondent did not deny having not paid the two outstanding instalments but argued that, in May 2013, the player had “suffered an injury that enabled him to play for a long time”. 10. Furthermore, with regard to the additional claimed amount of EUR 40,000 based on article 1.3. of the agreement, the Respondent was of the opinion that such a “penalty clause has to be considered absolutely no valid and null” since it has “no legitimate basis and it is contrary to every principle of bona fide in the contractual stability”. 11. Finally, as to the claimed interest, the Respondent deemed that, if due, they “must be calculated only on the transfer fee eventually due and not also on the penalty”. 12. Consequently, the Respondent requested FIFA “to reduce the outstanding transfer fee in consideration of the limited performance of the player during sport season 2012/2013” and “to assess the no validity of the penalty clause or to reduce its amount” as well as “to not admit the calculation of the interest on the penalty, if due”. 13. Finally, the Respondent informed “about its availability to amicably settle the dispute at hand and to not submit it before the FIFA decision making Body”. 14. On 16 December 2013, after having been asked by FIFA if the present matter could be settled in an amicable way, the Claimant alleged that no such settlement had been reached and requested FIFA “to submit the file to the Players’ Status Committee for consideration and a formal decision”. 15. On 25 February 2014, the Respondent presented its final comments and reiterated its previous statements. In this respect, it emphasised again that “the outstanding amount of transfer fee, due to what above exposed, seems to be unequal and it should be reduced by FIFA Players’ Status Committee” since the player had “played only in few official matches” and also “suffered various difficulties and injuries” and was therefore “not fielded as it was supposed to be”. 16. Finally, the Respondent emphasised again that “according to the long standing and well-established jurisprudence of the Players’ Status Committee in similar cases, a penalty for late payment cannot be requested together with default interest as both requests aim at compensating the creditor for late payment” and consequently was of the opinion that the claimed amount of EUR 40,000 “seems to be an exorbitant amount and shall not be enforced”. 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 whether he was competent to deal with the case in hand. In this respect, he referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2012 and 2014). Consequently, and since the present matter was submitted to FIFA on 4 September 2013, the Single Judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: “the Procedural Rules”) is applicable to the matter in hand. 2. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 f) of the 2012 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. 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 2014 and 2012 editions 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 4 September 2013. In view of the foregoing, the Single Judge concluded that the 2012 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, the Single Judge entered into the substance of the matter and started by acknowledging the above-mentioned facts as well as the arguments provided by the parties and the documentation contained in the file. 5. In this respect, and first of all, the Single Judge took note that the parties had signed the agreement on 18 July 2012 for the temporary transfer of the player from the Claimant to the Respondent for a total amount of EUR 300,000 (cf. article 1.2 of the agreement), to be paid in three equal instalments of EUR 100,000. 6. Moreover, the Single Judge noted that the Claimant alleged having only received the first instalment amounting to EUR 100,000, whereas the last two instalments remained unpaid, i.e. EUR 200,000. The Single Judge emphasised that this fact was confirmed by the Respondent. 7. At this stage, the Single Judge further acknowledged that in addition the Claimant had requested the payment of a penalty fee amounting to EUR 40,000 as well as an annual interest at a rate of 5% as from 1 January 2013 until the date of effective payment on the total amount of EUR 240,000 based on article 1.3 of the agreement. 8. On the other hand, the Single Judge acknowledged the Respondent´s position and pointed out that the latter had requested a reduction of the outstanding loan amount agreed upon in the agreement taking into account that the player allegedly suffered an injury during the loan which prevented him from playing for a considerable period of time. Besides, the Single Judge observed that the Respondent had contested the validity of the penalty established in article 1.3 of the agreement and the application of interest. 9. First and foremost, the Single Judge was keen to emphasise that the reason invoked by the Respondent to reduce the loan amount, i.e. the alleged player’s injury, could not anyhow justify the reduction or the non-payment of the loan compensation agreed upon in article 1.2 of the agreement. 10. Furthermore, the Single Judge of the Players’ Status Committee was eager to stress that, according to art. 12 par. 3 of the Procedural Rules which states that “any party claiming a right on the basis of an alleged fact shall carry the burden of proof”, the Respondent had not provided any documentary evidence which would have indicated that the player suffered an injury during the loan. 11. Notwithstanding the above and for the sake of completeness, the Single Judge underlined that, based on the Respondent´s allegations, the alleged injury of the player occurred in May 2013, i.e. only one month before the expiry of the loan. Therefore, the Single Judge pointed out that the Respondent had anyway the possibility to use the services of the player almost for the entire period of the loan. 12. In view of the foregoing, the Single Judge concluded that the Claimant is entitled to receive from the Respondent the amount of EUR 200,000 as outstanding loan compensation. 13. Secondly, and with regard to the Claimant´s request in the amount of EUR 40,000 as penalty fee (cf. article 1.3 of the agreement), the Single Judge deemed that the wording of the said contractual clause was clear and precise when establishing its applicability in case of any delay of any of the instalments agreed upon in the agreement. 14. In addition, the Single Judge stressed that such penalty clause corresponding to 20% of the outstanding amount has to be considered reasonable and proportionate. 15. Therefore, the Single concluded that there is no valid reason as alleged by the Respondent to conclude that the agreed contractual penalty clause should be considered invalid. 16. At this stage, the Single Judge focussed his attention to the Respondent´s allegation that a penalty plus an interest could not be requested cumulatively. 17. In this context, the Single Judge deemed appropriate to recall the content of article 1.3 of the agreement by means of which the parties agreed that, in case of any delay in the payment of the loan compensation, a penalty equivalent to 20% on the outstanding amount will be paid to the Claimant by the Respondent, plus an annual interest at a rate of 5% until the date of effective payment over the total amount. 18. In addition, the Single Judge stated that, since the parties have contractually agreed both obligations, i.e. a penalty fee and interest, and since both obligations were reasonable and thus not excessive, the Single Judge held that, based on the legal principle of pacta sunt servanda which in essence means that agreement must be respected by the parties in good faith, the Claimant is entitled to receive from the Respondent the amount of EUR 40,000, i.e. 20% of the outstanding loan compensation of EUR 200,000, plus the relevant interest. 19. With regard to the claimed interest, the Single Judge took note that the Claimant had requested its application over the amounts of EUR 200,000 and EUR 40,000 as from 1 January 2013, i.e. one day after the expiry of the second instalment. 20. In this respect, the Single Judge turned his attention to the content of article 1.4 of the agreement and took note that, in case of total or partial delay of payment of the loan compensation by the Respondent, all outstanding amounts would be due to the Claimant. 21. In continuation, the Single Judge deemed appropriate to reiterate that the Respondent had fulfilled the payment of the first instalment but had failed to pay the second instalment which was due on 31 December 2012. Therefore, the Single Judge concluded that, based on the article 1.4 of the agreement, the entire loan compensation amounting to EUR 200,000 as well as the penalty fee of EUR 40,000 became due on 1 January 2013 and thus the claimed interest over both amounts should be applied as from that date. 22. Furthermore and with regard to the Claimant’s request for legal costs, the Single Judge decided to reject such request as such amount, i.e. currency of country H 25,000, is not granted in proceedings before the Players’ Status Committee in accordance with article 18 par. 4 of the Procedural Rules. 23. In view of all the above, the Single Judge decided that the claim of the Claimant is partially accepted and held that the Respondent has to pay to the Claimant the amount of EUR 200,000 as outstanding loan compensation as well as the amount of EUR 40,000 as penalty fee, plus an annual interest at a rate of 5% over the total amount of EUR 240,000, as from 1 January 2013 until the day of effective payment in accordance with the terms established in the agreement. 24. 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 currency of country H 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. 25. In this regard, the Single Judge reiterated that the Claimant’s claim is partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA. 26. 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 EUR 240,000. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 27. In view of the circumstances of the present matter, the Single Judge determined the costs of the current proceeding to the amount of currency of country H 20,000. 28. Consequently, and in line with the aforementioned, the Single Judge decided that the Respondent must pay the amount of currency of country H 20,000 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 T, is partially accepted. 2. The Respondent, Club B, has to pay to the Claimant, Club T, within 30 days as from the date of notification of this decision, the following amounts: 2.1 EUR 200,000 as outstanding transfer compensation, plus an interest at a rate of 5% per annum on the said amount from 1 January 2013 until the date of effective payment; 2.2 EUR 40,000 as penalty, plus an interest at a rate of 5% per annum on the said amount from 1 January 2013 until the date of effective payment. 3. Any further claims lodged by the Claimant, Club T, are rejected. 4. If the abovementioned amounts, plus interest as established above, 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 final costs of the proceedings in the amount of currency of country H 20,000 are to be paid by the Respondent, Club B, within 30 days as from the date of notification of the present decision, as follows: 5.1 The amount of currency of country H 5,000 has to be paid directly to the Claimant, Club T. 5.2 The amount of currency of country H 15,000 has to be paid directly to FIFA to the following bank account with reference to case nr.: 6. The Claimant, Club T, is directed to inform the Respondent, Club B, directly and immediately of the account number to which the remittances under points 2.1, 2.2 and 5.1 above are 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