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 15 June 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 15 June 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 14 July 2014, the club from country B, Club A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), signed a transfer agreement (hereinafter: the agreement) according to which the Respondent agreed to pay a transfer fee amounting to USD 3,500,000 net to the Claimant for the permanent transfer of the player from country B, Player E (hereinafter: the player), payable as follows: USD 2,000,000 upon fulfilment of the condition established in art. 2.1 of the agreement (cf. point I.2 below); USD 500,000 by 15 January 2015; USD 1,000,000 by 15 July 2015. 2. Art. 2.1 of the agreement stated that “The Player’s transfer depends upon both (i) the approval of the Player in the medical examination to be carried out by [the Respondent] in country D immediately upon signature of this Transfer Agreement, and (ii) the execution of a professional football player employment agreement between Player and [the Respondent], pursuant to the laws of country D and FIFA applicable rules”. 3. Pursuant to art. 4.2 of the agreement, “In case of default by [the Respondent] in the payment of the Transfer fee, it shall be liable for the payment of a noncompensatory penalty corresponding to 15% (fifteen percent) of the due and unpaid amount to [the Claimant], without prejudice of [the Claimant] claiming further loss and damages that can be evidenced. Payment of the penalty established in [art. 4.2 of the agreement] is cumulative with the compliance of the obligation in default by the defaulting Party. To wit, the payment of the penalty does not waive the Party in default from complying with its obligations established herein”. 4. Art. 4.3 of the agreement provided that “All the penalty fees shall be paid immediately upon the date of the relevant event and interest on such sum shall be applicable from due date until the date of effective payment, at a rate of 8% (eight per cent) per annum”. 5. On 22 January 2015, the Claimant put the Respondent in default of payment of the second instalment of the transfer fee, granting the Respondent until 26 January 2015 to remedy the default. 6. On 30 January 2015, the Claimant sent a final default notice to the Respondent, granting the latter until 1 April 2015 to proceed with the payment of the second instalment, failure of which would trigger the penalty of 15% and interest of 8% p.a. as from 15 January 2015, in addition to the main amount of USD 500,000. 7. On 27 April 2015, the Claimant lodged a complaint before FIFA against the Respondent, explaining that the latter had still not paid the second instalment of the transfer compensation, despite its several notices, which remained unanswered by the Respondent. 8. As a result, the Claimant claimed from the Respondent the amount of USD 500,000 corresponding to the second instalment of the transfer fee, plus USD 75,000 corresponding to the penalty of 15%, and USD 11,180 representing 8% interest p.a. as from 15 January 2015. Additionally, in the event the Respondent failed to pay on the due date (i.e. on 15 July 2015) the last instalment of USD 1,000,000 as set out in the agreement, the Claimant requested that the Respondent would pay the relevant amount, together with a penalty at the rate of 15% and 8% interest p.a. as of 15 July 2015. Finally, the Claimant requested the Respondent to bear legal costs and other costs incurred by the Claimant in the present proceedings, as well as disciplinary sanctions to be imposed on the Respondent. 9. In its statement of defence, the Respondent alleged that during the winter break, the player failed to resume training after the end of his paid leave, i.e. on 7 January 2015, apparently due to his failure to “adjust to the lifestyle of country D”. In this context, according to the Respondent, the player’s agent guaranteed it to loan the player for free to the club from country B, Club F, and, in exchange, the remaining second and third instalments would be paid from the purchase option at the end of the loan, i.e. in December 2015, which the Claimant allegedly agreed upon. In this respect, the Respondent provided the loan agreement concluded between the Respondent, Club F and the player on 14 January 2015. 10. Moreover, the Respondent stated that the Claimant used Third Party Ownership (TPO) agreements for the transfer of the player and also had induced the player with third parties to “a conflict of interest”. 11. Finally, the Respondent deemed that it would be disproportionate to grant both the penalty of 15% of the unpaid amounts as established in art. 4.2 of the agreement and a default interest of 8% p.a. as per art. 4.3 of the agreement. The Respondent further stated that, as an alternative, the default interest of 8% should be applied only in the event the Respondent failed to proceed with the payment of the remaining instalments at the end of the loan, i.e. on 31 December 2015. 12. In view of the aforementioned, the Respondent requested FIFA to suspend the proceedings until the end of the player’s loan with Club F. 13. In its replica, the Claimant mainly reiterated its claim, emphasising that the validity of the agreement was not subject to the effect of any further loan agreement concluded by the Respondent, the player and/or with third parties. The Claimant also underlined that the course of the player’s contractual performance with the Respondent, arising from his employment contract with the latter, was not related to the present dispute. 14. As to the Respondent’s arguments regarding TPO and influence on the player, the Claimant pointed to the lack of evidence provided by the Respondent as to how the alleged TPO agreements had prevented the said club from complying with its obligation of payment as per the agreement, or how they had induced the player along with third parties. In order to prove the contrary, the Claimant referred to art. 7 lit. e of the loan agreement according to which “(…) no third party influences the transfer of the Player” and art. 6 of the loan agreement which stated that “During the loan registration period, [the Respondent] will maintain 100% of the economic rights related to the Player”. 15. Finally, the Claimant added that the Respondent had not paid the last instalment of the transfer compensation. 16. On account of the aforementioned, the Claimant amended its claim, thus requesting the outstanding third instalment of USD 1,000,000, in addition to the outstanding second instalment of USD 500,000, plus USD 75,000 as penalty upon the second instalment and USD 150,000 as penalty upon the third instalment, plus USD 36,604 as 8% interest p.a. as from 15 January 2015 until 15 December 2015 and USD 33,536 as 8% interest p.a. as from 15 July 2015 until 15 December 2015. The Claimant also requested legal costs and all costs of the proceedings to be borne by the Respondent and the imposition of disciplinary sanctions on the Respondent as per art. 12bis of FIFA Regulations. 17. In its duplica, the Respondent rejected the Claimant’s argument as to art. 12bis of FIFA Regulations since the transfer agreement at the basis of the dispute was signed prior to 1 March 2015. 18. As to the Claimant’s request for legal costs, the Respondent pointed to art. 18 par. 4 of FIFA Procedural Rules in order to reject such request. 19. Finally, the Respondent solely reiterated its initial position, inter alia insisting on the absence of a default notice sent by the Claimant in this regard. According to the Respondent, the Claimant was not interested in the debtor to fulfil its obligation of payment of the second and third instalments, but rather in the “call option” to be exercised by Club F at the end of 2015. II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: 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 Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015). Consequently, and since the present matter was submitted to FIFA on 27 April 2015, thus after the aforementioned rules entered into force (1 April 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 matter at hand. 2. 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 2015 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 27 April 2015. In view of the foregoing, the Single Judge concluded that the 2015 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter as to the substance. 3. 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 lit. f) 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. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the above-mentioned facts of the case as well as the documents contained in the file. 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. 4. In this respect, the Single Judge noted that the parties had signed a transfer agreement on 14 July 2014 for the permanent transfer of the player from the Claimant to the Respondent, in exchange of a payment in the amount of EUR 3,500,000 payable in three instalments as follows: USD 2,000,000 upon fulfilment of the condition established in art. 2.1 of the agreement (cf. point I.2 above); USD 500,000 by 15 January 2015; USD 1,000,000 by 15 July 2015. 5. In continuation, the Single Judge noted that the Claimant lodged a claim against the Respondent in front of FIFA for the outstanding payment of the second and third instalments of the relevant transfer compensation, respectively due on 15 January and 15 July 2015. In this regard, the Single Judge observed that the Respondent, in its statement of defence, alleged that the parties agreed upon the payment of the relevant outstanding instalments by the Respondent from the purchase option exercised by Club F at the end of the loan of the player in the latter club. 6. At this stage, the Single Judge referred to art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 7. In casu, the Single Judge noted that the Respondent did not provide any conclusive evidence in order to establish that the parties did agree upon a delayed payment of the second and third instalments based on the exercise of the purchase option by Club F. Equally, the Single Judge highlighted that the Claimant disputed the aforementioned. Consequently, the Single Judge rejected the Respondent’s argument in this respect. 8. Bearing in mind the aforementioned and the general principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge held that the Respondent must fulfil the obligation it entered into with the Claimant in accordance with the agreement. Therefore, the Single Judge concluded that the Respondent must pay to the Claimant the outstanding second and third instalments due under the transfer agreement in the total amount of USD 1,500,000. 9. After having dealt with the first part of the Claimant’s claim, the Single Judge turned his attention to the second request of the Claimant, i.e. the additional claimed amount of EUR 225,000 as penalty on the outstanding second and third instalments. In this respect, the Single Judge referred to the content of art. 4.2 of the transfer agreement, which established that “In case of default by [the Respondent] in the payment of the Transfer fee, it shall be liable for the payment of a non-compensatory penalty corresponding to 15% (fifteen percent) of the due and unpaid amount to [the Claimant], without prejudice of [the Claimant] claiming further loss and damages that can be evidenced. Payment of the penalty established in [art. 4.2 of the agreement] is cumulative with the compliance of the obligation in default by the defaulting Party. To wit, the payment of the penalty does not waive the Party in default from complying with its obligations established herein”. 10. In this respect, the Single Judge recalled that the Claimant put the Respondent in default on 22 January 2015 regarding the second instalment, nonetheless, the latter undisputedly did not remedy such debt nor the third instalment in accordance with the contract. 11. In this respect, and taking into account that pursuant to the agreement, the relevant instalments were due on 15 January 2015 as well as on 15 July 2015 respectively, the Single Judge decided that the conditions as set forth in art. 4.2 of the agreement were fulfilled and that, as a result, the Respondent had to pay to the Claimant, in addition to the aforementioned amount of USD 1,500,000, a penalty of USD 225,000 corresponding to 15% of the outstanding second and third instalments of the transfer fee. 12. Turning his attention to the Claimant’s request for interest at a rate of 8% per year as of the due date of each instalment, the Single Judge referred to art. 4.3 of the transfer agreement, which foresaw that “All the penalty fees shall be paid immediately upon the date of the relevant event and interest on such sum shall be applicable from due date until the date of effective payment, at a rate of 8% (eight per cent) per annum”. In this respect, the Single Judge analysed the wording of such provision and underlined that, albeit the parties seemed to have agreed upon an interest of 8% applicable on the penalty payable for the default of payment, the agreement did not foresee interest on the principal amount in addition to the penalty payment. Consequently, considering the constant practice of the Players’ Status Committee and its Single Judge not to grant interest on penalty payments, the Single Judge decided to reject this part of the claim. 13. Likewise, as regards the claimed legal expenses, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its long-standing and wellestablished jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Dispute Resolution Chamber. Consequently, the Single Judge decided to reject the Claimant’s request relating to legal expenses. 14. 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. 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). 15. On account of the above, and considering that the claim of the Claimant had been partially accepted, the Single Judge concluded that both parties had to bear the costs of the current proceedings before FIFA. 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. 16. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings was USD 1,725,000. Consequently and taking into account that the total amount in dispute in the present matter was over CHF 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponded to CHF 25,000. 17. In conclusion, and in view of the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000 which shall be borne by both parties. 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, Club A, the outstanding amount of USD 1,500,000, within 30 days as from the date of notification of this decision. 3. The Respondent, Club C, has to pay to the Claimant, Club A, the amount of USD 225,000 as penalty, within 30 days as from the date of notification of this decision. 4. In the event that the aforementioned amount is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 5. Any other claims lodged by the Claimant, Club A, are rejected. 6. The final costs of the proceedings in the amount of CHF 18,000 are to be paid within 30 days as from the date of notification of the present decision, as follows: 6.1 The amount of CHF 4,000 by the Claimant, Club A, to FIFA. Given that the Claimant, Club A, has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the Claimant, Club A, does not have to pay any additional amounts as costs of the proceedings. The amount of CHF 1,000 shall be reimbursed by FIFA to the Claimant, Club A. 6.2 The amount of CHF 14,000 by the Respondent, Club C, to FIFA to the following bank account with reference to case nr. xxxxxxxxxxxx: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 7. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 3. 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. 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