F.I.F.A. – Commissione per lo Status dei Calciatori (2015-2016) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2015-2016) – 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 16 March 2016, 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

F.I.F.A. - Commissione per lo Status dei Calciatori (2015-2016) – controversie tra società – ---------- F.I.F.A. - Players’ Status Committee (2015-2016) – 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 16 March 2016, 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 22 January 2015, the club from country B, Club A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded a transfer agreement for the transfer of the player, Player E, against a transfer fee in the amount of EUR 195,750. 2. Clause 3 of the transfer agreement stipulated, inter alia, the following: “[The Respondent] shall pay to [the Claimant] as transfer compensation for the transfer of the Player a sum of EUR 195,750 (…) [The Claimant] orders and [the Respondent] accepts the order that [the Respondent] shall pay all of the transfer compensation for the transfer directly to the Club F (…) in two parts: - EUR 100,000 until 15 February 2015 at latest, - remaining amount until 31 May 2015 at latest.” 3. Clause 5 of the transfer agreement reads as follows: “(…) If a provision of this agreement is or becomes partially or entirely invalid, then this shall not affect the validity of the remainder of the provision or of the provisions of this Agreement. In lieu of the invalid provision, such regulation shall apply is closest to the economic purpose of the Agreement. The same shall apply to any gaps. This agreement, its interpretation and any disputes arising there from shall be governed by and construed in accordance with the applicable FIFA regulations”. 4. On 26 August 2015, the Claimant lodged a claim before FIFA against the Respondent, requesting after amending its claim, the total amount of EUR 195,750, plus 5% interest p.a. as of 30 January 2015 and the defence fees and costs. 5. In particular, the Claimant held that the player was firstly transferred from the club from country G, Club F (hereinafter: Club F), to the Claimant against payment of the amount of EUR 195,750 and that he was subsequently transferred from the Claimant to the Respondent for the same amount. 6. In this context, the Claimant asserted that it is under judicial administration as from 6 February 2015 and that due to financial difficulties it could not pay its debts towards Club F. As a result, clause 3 of the transfer agreement provided for an assignment of the Claimant’s debt in favour of Club F. However, Club F, which was not a party in the transfer agreement, did not consent to this assignment of the debt and lodged a claim before FIFA against the Claimant, for the alleged non-payment of the transfer fee agreed upon between Club F and the Claimant. 7. In light of the foregoing, the Claimant provided evidence of having unsuccessfully put the Respondent in default on 31 July 2015. In particular, the Claimant referred to art. 175 of the Swiss Code of Obligations which provides that “a person who promises to answer for the debt of another assumes an obligation to release the debtor from his obligation either by satisfying the creditor or by taking the debtor’s place with the consent of the creditor” and stated that none of the conditions provided for in the aforementioned provision were met since i) the Respondent did not pay Club F the transfer fee and ii) Club F did not accept the assignment of the debt. 8. As a result, the Claimant referred to clause 5 of the transfer agreement (cf. point I.3 above) and assessed that the assignment of the debt is null and void and, consequently, the Respondent shall pay the transfer fee for the player to the Claimant. 9. In its reply to the Claimant’s claim, the Respondent referred to the wording of the transfer agreement, in accordance with which it had to pay the transfer fee to Club F directly, thus, being Club F the sole creditor. In this respect, the Respondent held that it tried to pay the transfer fee but due to both the wording of the transfer agreement and the ongoing process between Club F and the Claimant, it no longer knew to whom it has to pay the transfer fee for the player. 10. In this context, the Respondent held that the insolvency situation of the Claimant may prevent it to manage its business activity and, as a result, it may not be in a position to take legal actions on normal basis. In particular, the Respondent asserted that the Claimant failed to provide any evidence as to its legitimacy to lodge a claim and to receive any benefits under country B’s Law. 11. Furthermore, the Respondent pointed out that the Claimant failed to provide evidence of the legitimacy of the Judicial trustee to appoint a legal representative and, as a result, requested the rejection of the claim. 12. Moreover, the Respondent stressed that it is not aware of the status of the Claimant’s insolvency proceedings and/or if Club F is still its creditor. In particular, the Respondent held that it appears that, although there is no evidence on file, Club F registered its debt and that the latter’s claim was rejected. 13. In addition, the Respondent rejected the Claimant’s interpretation of the clause 3 of the transfer agreement. In particular, the Respondent stated that the parties agreed upon a pactum in favorem tertii and that, consequently, it is of the opinion that Club F is the only club entitled to receive the outstanding transfer fee since it also has legal standing to claim in spite of not being a party to the transfer agreement. As a result, the Respondent further stated that the Claimant is not entitled to claim on behalf of Club F the execution of the payment since the right to receive the transfer fee was assigned to Club F. 14. In this context, the Respondent referred to art. 175 par. 3 of the Swiss Code of Obligations, the free translation of which provided by the Respondent stipulates that “if the previous debtor is not released from his debt, he may request that the new debtor furnish security”, and held that even if clause 3 of the transfer agreement is understood as the right of the Claimant to receive the transfer fee, the latter would still not be legitimated to receive the transfer fee but, on the contrary, the Claimant could only claim a guarantee of the payment. 15. Lastly, the Respondent requested that the proceedings between Club F and the Claimant as well as the proceedings between the latter and the Respondent be dealt with jointly in order to settle the matter of who is entitled to receive the transfer fee while avoiding the risk of the Respondent being obliged to pay twice the same amount. 16. Upon request, both parties confirmed that Club F is aware of the contents of the present agreement concluded between the Claimant and the Respondent, and the Claimant rejected the involvement of Club F in the present proceedings. 17. On 23 February 2016, the Claimant reiterated with an unsolicited correspondence that the validity of the reassignment of the debt depends on the acceptance of Club F, who had systematically refused it and, in its opinion, has always considered the Claimant its sole debtor since it tried to have its debt recognized before the country B’s courts and initiated the proceedings before FIFA. 18. As to its lack of legal standing to sue the Respondent, the Claimant referred to art. 154 in connection with art 155 lit c. of the Swiss Private International Law Act, and held that this matter shall be analysed on the basis of the Law in accordance with which the company is organized, i.e. country B’s Law. In particular, the Claimant held that according to the country B’s Insolvency Act, a company into insolvency proceedings maintains its capacity as right holder and its obligations in order to perform its day-to-day business activity and operating in normal conditions, as the main objective of the insolvency is to improve the financial situation of the company by negotiating a reduction of its debts. In this respect, the Claimant referred to the jurisprudence of the Swiss Federal Tribunal, in accordance with which, in order to establish the jurisdiction of a Swiss arbitration body when a company undergoing insolvency proceedings is involved, one has to verify whether the company has legal capacity in its country and, if so, it can be part of an arbitration procedure in Switzerland. 19. In light of the foregoing, the Claimant referred to a Syndic Judge decision and held that through a special administrator, it maintains its right to administrate the club. Furthermore, the Claimant provided a copy of the Court decision issued on 6 February 2015 and held that according to said decision, the bankruptcy judge nominated the Judicial trustee to act on its behalf and, in accordance with art. 58 lit. f) and l) of the country B’s Insolvency Act, the Judicial trustee shall “claim credits, pursuing the collection of credits regarding the assets of the debtor or amounts of money transferred by the debtor prior to the start of insolvency, lodging and supporting actions for the recovery of credits from the debtors, being entitled to hire lawyers”. 20. In light of the above, the Claimant referred to art. 180 of the Swiss Code of Obligations, which stipulates that “in the event of the failure of the debt assumption contract, the previous debtor’s obligation is revived with all accessory rights, subject to the rights of bona fide third parties” and concluded that, due to the behaviour of Club F and the Respondent, the Claimant is in a position to request from the Respondent the outstanding transfer fee. 21. Lastly, the Football Federation of country B confirmed that the Claimant “is still affiliated and participating in the 2015/2016 national championship of country B”. 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 matter at hand. In this respect, he referred to art. 21 of the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. Consequently, and since the present matter was submitted to FIFA on 26 August 2015, the Single Judge concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) was applicable to the present matter. 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 2015 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 to art. 26 par. 1 of the 2015 edition of the Regulations on the Status and Transfer of Players and again to the fact that the claim was lodged with FIFA on 26 August 2015. In view of this, the Single Judge concluded that the 2015 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) was applicable to the matter as to the substance. 4. His competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In doing so and first of all, the Single Judge emphasized 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 context, and first of all, the Single Judge noted that the parties had concluded on 22 January 2015 a contract for the definitive transfer of the player from the Claimant to the Respondent. In exchange, the Respondent had to pay to the Claimant a transfer fee in the amount of EUR 195,750, payable in two instalments of EUR 100,000 and the remaining amount until 15 February 2015 and 31 May 2015 respectively. 6. Furthermore, the Single Judge also noted that the parties agreed in clause 3 of the transfer agreement that the Respondent, who had to pay to the Claimant the aforementioned transfer fee, shall do so directly to Club F. 7. In continuation, the Single Judge noted that the Claimant had brought a claim against the Respondent before FIFA for the outstanding transfer fee agreed upon in the amount of EUR 195,750, plus 5% interest p.a. as of 30 January 2015 and the “defence fees and costs”. In this regard, the Single Judge observed that the Claimant argued that it was under judicial administration due to its financial situation and that it failed to pay the transfer fee for the previous transfer of the player from Club F. As a result, the Single Judge acknowledged that the Claimant and the Respondent agreed that for the transfer of the player from the former to the latter, the Respondent shall pay the transfer fee directly to Club F, which, in the Claimant’s opinion, did not accept the change in the creditor and lodged a claim against the Claimant at FIFA. The Single Judge noted that in light of the foregoing the Claimant is of the opinion that said arrangement shall be considered null and void and that the Respondent shall pay the outstanding transfer fee to the Claimant. 8. As to the Respondent’s position to the claim, the Single Judge noted that the latter referred to clause 3 of the transfer agreement and stated that, on the basis of Swiss law, it was Club F, and not the Claimant, who had standing to lodge a claim for the outstanding transfer fee. Equally, the Single Judge acknowledged that the Respondent held that it had tried to pay the transfer fee but that with the aforementioned situation it did not know to whom it had to pay. 9. In this respect, the Single Judge stressed that clause 3 of the transfer agreement stipulated that the transfer fee shall be paid by the Respondent to the Claimant. 10. Subsequently, the Single Judge underscored that the effects of clause 3 of the transfer agreement depend on the acceptance of the creditor, this is, Club F, which was not even a party in the agreement concluded between the Claimant and the Respondent. At this stage, he further pointed out that it is undisputed that Club F lodged a claim against the Claimant related to the alleged outstanding transfer fee in connection with the transfer of the player from Club F to the Claimant. As a result, the Single Judge concluded that it is clear that Club F did not accept the change in the position of the debtor from the Claimant to the Respondent. 11. In continuation, the Single Judge pointed out that it remains uncontested that the transfer fee was never paid by the Respondent. Consequently, the Single Judge concluded that the amount of EUR 195,750 remained outstanding. 12. Subsequently, the Single Judge referred to the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith. As a result, the Single Judge concluded that the amount of EUR 195,750 should therefore be paid by the Respondent to the Claimant in compliance with clause 3 of the transfer agreement concluded between these two parties. 13. In continuation, the Single Judge turned his attention to the Claimant’s the request to be awarded 5% interest p.a. for the late payment of the two instalments of the transfer fee. In this respect, the Single Judge referred to the longstanding practice of the Players’ Status Committee and concluded that the Respondent has to pay 5% interest p.a. on EUR 100,000 as of 16 February 2015 and on EUR 95,750 as of 1 June 2015. 14. Furthermore and for the sake of good order, the Single Judge decided that any further claims from the Claimant, including its request for the defence fees and costs (cf. art. 18 par. 3 of the Procedural Rules), should be rejected. 15. 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 proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25,000 are levied and which states that 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. 16. 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 did not exceed CHF 200,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000. 17. In conclusion, and in view of the circumstances of the present matter, the Single Judge determined that the costs of the current proceedings to the amount of CHF 15,000 shall be borne by the Respondent. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club A, is partially accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 195,750, plus 5% interest p.a. as follows: - on the amount of EUR 100,000 as of 16 February 2015, and - on the amount of EUR 95,750, as of 1 June 2015. 3. If the aforementioned sum is 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. 4. Any further claim lodged by the Claimant is rejected. 5. The final amount of costs of the proceedings in the amount of CHF 15,000 are to be paid by the Respondent within 30 days of notification of the present decision as follows: 5.1 The amount of CHF 11,027.63 to FIFA to the following bank account with reference to case nr. XXXX: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 5.2 The amount of CHF 3,972.37 to the Claimant. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance 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 58 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 Marco Villiger Deputy Secretary General Encl. CAS Directives