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 Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club P, from country N as Claimant against the club, Club X, from country R as Respondent regarding a contractual dispute between the parties relating to the player T

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 Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club P, from country N as Claimant against the club, Club X, from country R as Respondent regarding a contractual dispute between the parties relating to the player T I. Facts of the case 1. On 7 February 2014, the Club P from country N (hereinafter: the Claimant), and the Club X from country R (hereinafter: the Respondent), concluded a transfer agreement for the transfer of the player, T (hereinafter: the player) from the Claimant to the Respondent. 2. In accordance with the transfer agreement, the Respondent would pay the Claimant the amount of EUR 7,400,000 as follows: - EUR 2,400,000 by no later than 14 February 2014; - EUR 2,500,000 by no later than 27 June 2014; - EUR 2,500,000 by no later than 20 January 2015. 3. Art. 1 of the agreement, which is titled “Conditions Precedent”, stipulates the following: 1.1 The Parties agree that the Transfer Agreement shall only become valid and binding to the Parties upon fulfilment of the following conditions precedent: 1.1.1. The results of Player’s medical examination held for [the Respondent] are successful and accepted by [the Respondent] before 12th February 2014. [The Claimant] and [the Respondent] agree that the player is allowed to travel to Club X not earlier than Sunday 9th February 2014 for his medical check-up. 1.1.2. Dissolution of the Player Agreement releasing the Player from all contractual obligations towards [the Claimant]. 1.1.3. Agreement of personal terms and conditions between the Player and [the Respondent] (…) before 12th February 2014. 1.1.4. Registration of the Player with the football league of country R in accordance with the applicable rules of the football league from country R and FIFA/UEFA. 1.2 Provided the above condition precedents under Clause 1.1 are fulfilled in due time, this Transfer Agreement shall become automatically valid and binding upon the Parties at the time the final condition precedent is fulfilled (“Due Date”).” 4. Art. 9.1 of the agreement reads as follows: “Should one or more of the above conditions precedent under this Transfer Agreement not be fulfilled, this Transfer Agreement shall be deemed invalid and non-binding to the Parties and neither Party shall have any rights or obligations towards any other Party in connection with this Transfer Agreement irrespective of the cause of default. Consequently, any and all rights [the Respondent] holds directly or indirectly in connection with the Player shall be immediately transferred to [the Claimant].” 5. On 21 May 2014, the Claimant lodged a claim in front of FIFA against the Respondent, indicating that the latter had breached the transfer agreement signed between the parties on 7 February 2014. 6. In particular, the Claimant explained that on 7 February 2014 the player and the Respondent had entered into an employment contract, a copy of which it enclosed to its claim. The Claimant held that whereas the employment contract is dated 2 February 2014, it was in fact signed on 7 February 2014 only. The Claimant further explained that whereas typically a club conducts the player’s medical examination prior to the conclusion of the employment contract, in the present matter, the Respondent only conducted the medical examination after the player had already signed an employment contract with the Respondent. 7. On 12 February 2014, the Respondent informed the Claimant by email that the medical examination of the player, which had taken place on 11 February 2014, had not been successful and that, therefore, in accordance with art 9.1 in conjunction with art. 1.1.1. of the transfer agreement, said agreement was invalid and non-binding. Later that day, the Respondent forwarded a letter of a doctor from country G dated 11 February 2014 to the Claimant which contained information in relation to the player’s physical state. 8. Also on 12 February 2014, and after having received the results of the medical examination carried out by the Respondent, the Claimant, inter alia, disputed such results and proposed to conduct a second medical opinion in the in country N, to which apparently no reply was received from the Respondent. On 14 February 2014, upon the Claimant’s initiative, a second medical opinion was conducted, during which no abnormalities were found. As a result, on 15 February 2014, the Claimant informed the Respondent that it did not accept its position of 12 February 2014, since the player’s medical status was fine. 9. In this respect and in support of its claim, the Claimant argued that: a) On 12 February 2014, the period mentioned in art. 1.1.1. had already expired since the lack of fulfilment of the condition precedent was only valid before 12 February 2014. Hence, the notification letter of the Respondent of 12 February 2014 was sent too late and the Respondent was not entitled anymore to revoke or rely on that condition. b) Art. 1.1.1. of the agreement is constitutional by nature since otherwise it would give the Respondent the right to rely afterwards and without reasons on the lack of fulfilment of the conditions precedent. Equally, the Respondent acknowledged the existence of the transfer agreement by sending the notification on 12 February 2014. c) Art. 18 par. 4 of the Regulations on the Status and Transfer of Players applies mutatis mutandis to transfer agreements. Therefore, a transfer agreement cannot be made subject to a medical examination. d) The behaviour of the Respondent subsequent to the conclusion of the transfer agreement demonstrates pacta sunt servanda, since the Respondent did not release the player from his obligations arising from the employment contract and did not sent him a notice of termination regarding the employment contract. e) The Respondent did not submit any evidence that the period mentioned in art. 1.1.1. had been extended, nor did it submit any medical or tangible evidence that substantiates the accuracy and objectiveness of the medical examination, which are disputed by the Claimant. f) There is nothing stated in art. 1.1 of the transfer agreement that each and every condition has to be fulfilled and that the condition written in art. 1.1.1. is deemed to be a condictio sine cause. g) The transfer agreement has been drafted by the Respondent; therefore it must be construed contra proferentem. h) Swiss law does not recognise “a substantive basis for a subject heading”, in this respect referring to the subject heading of art. 1, i.e. the “Conditions Precedent”. 10. On account of the above, the Claimant requested payment of the transfer compensation as established in the transfer agreement, i.e. the amount of EUR 7,400,000 from the Respondent, plus 5% interest as from the respective due dates, or any other amount to be determined in good justice as compensation for breach of contract. 11. In reply to the claim, the Respondent first clarified that on 29 January 2014 the parties had negotiated the loan of the player from the Claimant to the Respondent and, only in this framework, the player and the Respondent signed a “Project of Contract” on 2 February 2014. However, after the negotiations for the loan collapsed, the Claimant and the Respondent started to discuss the potential definitive transfer of the player. 12. In this respect, the Respondent referred to art. 151 of the Swiss Code of Obligations as well as to art. 1 and art. 9 of the transfer agreement and stressed that the parties explicitly agreed that the agreement was “a conditional contract”. The Respondent emphasised that the agreement, although existent, never became valid and binding upon the parties due to the non-occurrence of art. 1.1.1. of the agreement. 13. In particular, the Respondent disputed the Claimant’s argument that the lack of fulfilment of the medical examination was only valid if communicated by the Respondent before 12 February 2014. In the Respondent’s view, art. 1.1.1. of the transfer agreement clearly provides for the opposite, namely that the medical examination not only had to be successful but also had to be explicitly accepted and communicated by the Respondent to the Claimant before 12 February 2014. Hence, if the Respondent failed to notify the acceptance of the medical examination before the deadline, the agreement would simply not become valid and binding upon the parties. The Respondent further explained that it was in fact the Claimant which entered the relevant deadline in the agreement to be sure that the Respondent communicated in due course the results of the player’s medical examination. 14. In addition, the Respondent held that: a) Art. 18 par. 4 of the Regulations on the Status and Transfer of Player only applies to contracts between players and clubs. b) The transfer agreement became valid and binding only if i) the results of the player’s medical examination were successful; ii) the results had to be considered successful only at the Respondent’s discretion and thus accepted only by the Respondent; and iii) the Respondent had notified the Claimant about its acceptance before 12 February 2014. However, the medical examination was not successful and not accepted by the Respondent. c) There was no need for “objectiveness” in the results of the medical examination; the results had to be accepted by the Respondent at its sole discretion. d) The player was examined in country G by an independent doctor. Upon receipt of the results, the Respondent’s own doctor, relying on the report of the doctor from country G, issued a report dated 12 February 2014 to the club’s Financial Director explaining the reasons why he did “not recommend the transfer of the football player T to [the Respondent].” e) The transfer agreement was drafted together with the Claimant, the relevant clauses are clear and need no further explanation. 15. Moreover, the Respondent pointed out that also the other conditions of the agreement were not met and that one can conclude from the Claimant’s own behaviour that it did not deem the transfer agreement valid, since the Claimant did not release the player from its contractual obligations, i.e. it did not terminate its employment contract with the player. On the contrary, the Claimant kept the player’s registration and later on transferred the player to the country G club, Club A for a substantial transfer compensation. What is more, the Claimant never inserted the instructions into the Transfer Matching System (TMS) in order to release the player’s International Transfer Certificate (ITC). 16. Furthermore, the Respondent insisted that the “Project of Contract” concluded with the player was i) related to the loan of the player, ii) was signed by a representative of the club who was not authorized to bind the Respondent, iii) was conditioned to a valid agreement on the player’s transfer and, iv) any possible obligation from the Respondent towards the player is irrelevant in relation to the agreement signed between the Respondent and the Claimant. 17. In addition, the Respondent contested that the second medical opinion of the Claimant was ever notified to the Respondent. 18. Finally, the Respondent indicated that the Claimant’s assertion that the Respondent “was very keen to have the transfer completed prior the closure of the transfer window available to [the Respondent]” is false, since the transfer window in country closed on 27 February 2014 only. 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 edition of the Procedural Rules were applicable to the matter at 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 (edition 2012 and 2014) as well as to the fact that the present matter was submitted to FIFA on 21 May 2014, thus after 1 December 2012 but before 1 August 2014. Therefore, the Single Judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 and 2014 edition of the Regulations on the Status and Transfer of Players and, on the other hand, again to the fact that the claim was lodged in front of FIFA on 21 May 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 2 of the Procedural Rules in conjunction with art. 23 par. 1 and 3 as well as art. 22 lit. f) of the Regulations, he was competent to hear the present matter since it concerned a dispute between 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. In this respect and first of all, the Single Judge noted that it was undisputed between the Claimant and the Respondent that, on 7 February 2014, a transfer agreement had been concluded between the parties pertaining to the transfer of the player from the Claimant to the Respondent for a transfer compensation of EUR 7,400,000. It was equally undisputed between the parties that the transfer had been made subject to certain conditions, amongst others, the player’s successful medical examination. 6. The Single Judge further noted that the player underwent a medical examination on 11 February 2014, the results of which were unsatisfactory for the Respondent, reason for which the Respondent informed the Claimant on 12 February 2014 that, in accordance with art 9.1 in conjunction with art. 1.1.1. of the transfer agreement, it considered the transfer agreement to be invalid and not binding upon the parties. In other words, the Respondent informed the Claimant on 12 February 2014 that the transfer of the player from the Claimant to the Respondent would not take place. 7. In this context, the Single Judge also observed that the Claimant in essence considers that i) a transfer agreement cannot be made subject to a successful passing of a medical examination, ii) on 12 February 2014 the period mentioned in art. 1.1.1. of the transfer agreement had already expired since the lack of fulfilment of the condition precedent was only valid before 12 February 2014, iii) no tangible evidence had been provided by the Respondent which would substantiate the accuracy and objectiveness of the results of the medical examination performed by the Respondent, and iv) the Respondent did not release the player from the employment contract it had concluded with the player, therefore, its behaviour demonstrated pacta sunt servanda. 8. Having analysed the argumentation put forward by the Claimant, the Single Judge first of all emphasised that, as already confirmed by the Single Judge of the Players’ Status Committee as well as by the Court of Arbitration for Sport (CAS) in the award rendered in CAS 2013/A/XXXX, art. 18 par. 4 of the Regulations does not apply to agreements between clubs, i.e. it only applies to contracts between professionals and clubs, as indicated by the clear wording of the headline of the relevant article which reads: “Special provisions relating to contracts between professionals and clubs.” Hence, the Single Judge determined that art. 18 par. 4 of the Regulations does not apply to transfer and loan agreements. 9. In this context, the Single Judge was eager to underline that the Regulations are based on the following concept: first, the player’s former club and the new club find an agreement on the transfer of the player and subsequently sign the relevant agreement. Then, the medical examination should be performed and only then, with these prerequisites established and after careful research and taking all appropriate steps, the player and his new club should sign an employment contract. Consequently, neither the spirit nor the purpose of the Regulations prevent two clubs from making a transfer or loan agreement subject to a successful medical examination. Having established the foregoing, the Single Judge emphasised however that any possible way of abuse needs to be prevented. In this respect, the Single Judge concluded that, in casu, there are no indications for a possible abuse of the relevant provision by the Respondent, especially since the relevant medical examination had been conducted immediately after the signature of the agreement and since the Respondent provided the necessary medical documentation. 10. In relation to the above, the Single Judge acknowledged however that the Claimant disputed the accuracy of the result of the medical examination performed by the Respondent. In this respect, the Single Judge referred to art. 1.1.1. of the transfer agreement and stressed that the relevant provision stipulates that “The results of Player’s medical examination held for [the Respondent] are successful and accepted by [the Respondent] (…)”. Hence, in the Single Judge’s opinion, according to the agreement, the player had to pass the medical tests performed by the Respondent and it was up to the Respondent to examine the player’s health and set the criteria on which basis the player would pass the medical tests. The Single Judge held that it may very well be that the Claimant came to a different conclusion on the basis of different criteria; however, it is not up to the Claimant to decide on which basis the Respondent deems that a player is fit to practice professional football for the Respondent. In view of the foregoing, the Single Judge held that it was not necessary to examine the medical tests in detail, but that it sufficed that there was no indication or evidence on file that the medical tests had been abused to avoid the performance of the agreement. Indeed, the Single Judge held that nothing indicated that the Respondent had not, in good faith, conducted the medical tests. 11. Having established the above, the Single Judge continued by analysing the timing of the notification sent by the Respondent to the Claimant and whether, as sustained by the Claimant, at the time the Respondent sent the relevant notification on 12 February 2014, the time limit in art. 1.1.1. of the transfer agreement had already expired. 12. After a careful examination of the relevant documentation, in particular, of art. 1.1.1. of the transfer agreement, the Single Judge indicated that he did not agree with the Claimant’s interpretation of the aforementioned provision of the transfer agreement. The Single Judge agreed with the Respondent that i) the results of the player’s medical examination were not successful for the Respondent and therefore not accepted, and ii) the mere fact that the Respondent had yet not informed the Claimant prior to 12 February 2014 that it did not accept the medical examination did not lead to conclude that the Respondent has accepted the results of the player’s medical examination before 12 February 2014. 13. The Single Judge was comforted in his interpretation of art. 1.1.1. of the transfer agreement by the communications sent by the Claimant directly after it had been informed by the Respondent of the player’s unsuccessful medical examination. In those communications, the Claimant has merely put forward that it disputed the results of the medical examination performed by the Respondent but at no time had questioned or disputed the timing of such communication. 14. Finally, and as to the arguments put forward by the Claimant in accordance with the player’s employment contract signed between the player and the Respondent, the Single Judge underlined that whereas a transfer agreement and an employment contract are evidently linked, these two agreements must still be considered as separate agreements, governed by separate sets of rules. The fact that the player signed an employment contract with the Respondent prior to the medical examination may have implications for the player vis-à-vis the Respondent, but, in the Single Judge’s view, does not, in the present matter, have any influence on the contractual relation between the Claimant and the Respondent. 15. In view of all the foregoing, the Single Judge came to the conclusion that the condition precedent under art. 1.1.1. of the transfer agreement, which made the validity of the agreement subject to a successful medical examination, had been triggered when the player was deemed not fit by the doctors appointed by the Respondent. Therefore, in accordance with art. 9.1 of the agreement, the Single Judge determined that the transfer agreement signed by the parties on 7 February 2014 was no longer valid and binding upon them. 16. In view of all the above, taking into consideration all the surrounding circumstances of this specific matter as well as the documentation presented during the proceedings, the Single Judge concluded that the Claimant is not entitled to receive the transfer compensation from the Respondent and thus its claim is rejected. 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 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). 18. In respect of the above, and taking into account that the claim of the Claimant has been rejected, the Single Judge concluded that the Claimant must bear the costs of the present proceedings. 19. According to Annex 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 7,400,000 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 20. Considering the particularities of the case at hand as well as the complexity of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000, which shall be borne by the Claimant. ***** III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club P, is rejected. 2. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Claimant to FIFA, CHF 5,000 of which have already been paid by the Claimant as advance of costs at the start of the proceedings. Consequently, the additional amount of CHF 10,000 has to be paid by the Claimant, within 30 days as from the date of notification of the present decision, to FIFA to the following bank account with reference to case no.: 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