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 A, country B as Claimant against the club, Club C, country D as Respondent regarding a contractual dispute between the parties relating to the Player E

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 A, country B as Claimant against the club, Club C, country D as Respondent regarding a contractual dispute between the parties relating to the Player E I. Facts of the case 1. On 20 June 2012, Club A from country B (hereinafter: the Claimant), and Club C from country D (hereinafter: the Respondent), concluded a transfer agreement for the transfer of Player E (hereinafter: “the player”), from the Claimant to the Respondent. 2. The aforesaid transfer agreement stipulated, inter alia, that: “2.6 Rights to the Player shall mean the rights for the use of sporting services of the Player in the field of sports of football in accordance with the FIFA Regulations. (…) 6.1 Club C shall pay Club A the Financial Support consisting in EUR 480.000 (four hundred eighty thousand Euros) net in two instalments, via bank transfer to the account of Club A provided by this Agreement as follows: - EUR 240.000 (two hundred forty thousand Euros) within 48 (forty eight) hours after the Player passes Medical examination, ITC arrives and signs New Contract; - EUR 240.000 (two hundred forty thousand Euros) until 20.09.2012. (…) 6.3 Further to the payment of the remuneration above, Club C hereby agrees to grant Club A a portion of 35% (thirty five percent) share of the net amount or any consideration and/or contingent consideration (whether in cash, federative, economic or otherwise) received by Club C in the event Club C’s cancelling the Rights to the Player or selling the Rights to the Player to a third party football club in the future, immediately upon receipt of the relevant sum from such third party football club. The net transfer fee shall be calculated as the amount effectively paid by the third party club deducted of any amount paid by Club C to Club A in accordance to the present agreement. (…) 8.1 The medical examination of the Player is a principal condition to make this Agreement. If the Player does not pass Medical Examination the transfer is not valid.” 3. On 23 November 2012, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract. The Claimant explained that the aforementioned transfer agreement as well as the player’s employment contract with the Respondent were duly signed and that, on 29 June 2012, it had mutually agreed to terminate the employment contract with the player. However, on 17 July 2012, the Respondent had sent a fax to the Claimant informing the latter that the player had failed to pass the medical examination and that, consequently, the signed contracts were no longer valid. 4. The Claimant referred to art. 18 par. 4 of the Regulations on the Status and Transfer of Players and argued that the validity of the transfer agreement cannot be made dependent on a successful medical examination. Furthermore, the Claimant referred to CAS jurisprudence in which the principle of pacta sunt servanda was recognized. Finally, the Claimant argued that, in view of the principle of positive interest, the injured party shall be put in the same position it would have been if the contract was performed properly. In view of the foregoing, the Claimant requested the amount of EUR 480,000 plus 5% interest p.a. as of the due date of each installment, as well as EUR 260,000 as indemnity for losses and damages pertaining to the 35% sell-on fee. 5. On 19 December 2012, the Respondent replied to the claim and stated that the player had failed to pass a medical examination conducted in a hospital in Austria. As a consequence, and in view of the provisions in country D regarding the Rules of Status and Transfer of Football Players, the player could not be registered in country D. Furthermore, the Respondent referred to a decision of the CAS (2009/A/XXXX), according to which gaps in the FIFA Regulations shall be filled by reference to domestic law, and stated that, under the law in country D, an employer may terminate an employment contract in case the employee is physically or mentally unable to fulfil the duties according to his job. 6. In addition, the Respondent stated that “the condition of fulfilling the medical examination prior to finalizing a transfer is allowed, because it follows a legitimate aim, in order to produce the effects of the contract”. Moreover, the Respondent argued that the transfer contract was not completed since it was never uploaded in the Transfer Matching System (TMS). 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2008, 2012 and 2014) as well as to the fact that the present matter was submitted to FIFA on 23 November 2012, thus after 1 July 2008 but before 1 December 2012. Therefore, the Single Judge concluded that the 2008 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 2010, 2012 and 2014 editions 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 23 November 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 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 20 June 2012, a transfer agreement was concluded concerning the transfer of the player from the Claimant to the Respondent. 6. Furthermore, the Single Judge took due note that, according to clause 8.1 of the transfer agreement, the transfer would not be valid in the event that the player would not pass the medical examination. 7. In continuation, the Single Judge noted that the Respondent had informed the Claimant on 17 July 2012, via fax, that the player had failed to pass the medical examination and that, consequently, the Respondent considered the transfer agreement no longer valid. 8. Having established the above, the Single Judge took note that the Claimant maintained that it is entitled to receive the transfer fee of EUR 480,000 from the Respondent, as well as EUR 260,000 for losses and damages pertaining to the sell-on clause, indicating that the Respondent had breached the transfer agreement, which was duly signed between the parties, by considering said contract no longer valid after the player had failed to pass the medical examination. 9. Furthermore, the Single Judge took due note of the Claimant’s reference to art. 18 par. 4 of the Regulations which, according to the Claimant, prohibits that the validity of a transfer contract be made dependent on a successful medical examination. 10. Equally, the Single Judge took note of the Respondent’s submission that the condition of fulfilling the medical examination prior to finalizing the transfer is allowed since it follows a legitimate aim. 11. 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 art. 18 par. 4 of the Regulations prohibits a clause in a transfer agreement which makes the validity of a transfer agreement dependent on a successful medical examination of the player. 12. In this respect, the Single Judge referred to art. 18 par. 4 of the Regulations and emphasised the fact that its wording clearly applies to contracts between players and clubs as already indicated by the headline of said article, “Special provisions relating to contracts between professionals and clubs”. The Single Judge further stressed that the foregoing has also been confirmed by the Court of Arbitration for Sport (CAS) in the award rendered in CAS 2013/A/XXXX. Hence, the Single Judge held that said article does not apply to transfer agreements. 13. 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 should find an agreement and sign the relevant contract regarding the transfer of the player. 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 agreement subject to a successful medical examination. However, every possible way of abuse needs to be prevented. In application of these considerations to the transfer agreement and the disputed clause, the Single Judge formed the belief that there are no indications for a possible abuse by the Respondent, especially since the relevant medical examinations had been conducted on 25 June 2012 and 29 June 2012, i.e. shortly after the signature of the transfer agreement on 20 June 2012, and the Respondent provided the necessary medical documentation. 14. In view of all the foregoing, the Single Judge concluded that clause 8.1 of the transfer agreement is valid and, as a consequence and considering that the player failed to pass his medical examination, the Respondent was entitled to consider the transfer agreement invalid. 15. Having established the aforementioned, the Single Judge held that the Claimant is neither entitled to receive the transfer fee nor an indemnification for losses and damages pertaining to the sell-on clause from the Respondent. 16. As a result of the above, the Single Judge decided to reject the Claimant’s claim. 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 is rejected, the Single Judge concluded that the Claimant 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 EUR 740,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 20. In conclusion, and considering that the case at hand did pose some particular factual difficulties, the Single Judge of the Players’ Status Committee determined the costs of the current proceedings to CHF 20,000, 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 A, is rejected. 2. The final costs of the proceedings in the amount of CHF 20,000 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 15,000 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