F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – (2020-2021) – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 26 January 2021

Decision of the

Single Judge of the Players' Status Committee

passed in Zurich, Switzerland, on 26 January 2021,

regarding an employment-related dispute concerning the player Sofyan AMRABAT

BY:

Johan van Gaalen (South Africa), member

CLAIMANT:

HELLAS VERONA, Italy

Represented by Mr. Paolo Lombardi

RESPONDENT:

CLUB BRUGGE, Belgium

Represented by Mr. Gauthier Bouchat and Mr. Sven Demeulemeester

I. FACTS

1. On 21 August 2019, Club Brugge and Hellas Verona concluded an agreement for the temporary transfer of the player Soyfan Amrabat from Club Brugge to Hellas Verona between 21 August 2019 and 30 June 2020.

2. Article 2 of the transfer agreement contains the following clause:

‘Subject to the fulfilment of the conditions precedent set forth in Article 1 above, Club agrees with the temporary transfer (loan) of the Player from Club to HELLAS VERONA as from 21 August 2019 until and including 30 June 2020 (the ‘Term’). This temporary transfer is concluded in accordance with the provisions set out in article 10 of the FIFA Regulations on the Status and Transfer of Players (…).’

3. Furthermore, the agreement holds in article 5 a clause that provided for an option to permanently register the player from Club Brugge, as follows:

‘Article 5 – Purchase option

In the event that the temporary transfer of the Player enters into effect, a unilateral option is automatically granted by Club to Hellas Verona, to permanently acquire 100% of the player’s federative and economic rights from Club (the “Purchase Option”) against a fixed permanent net transfer fee of EUR 3,500,000 (…) payable by HELLAS VERONA in accordance with the following payment terms and subject to the receipt of the corresponding invoice:

- EUR 1,750,000.00 (…) within 5 business days following the completion of the TMS procedure, and;

- EUR 1,750,000.00 (…) on 15th July 2021.

Should HELLAS VERONA be willing to execute its Purchase Option, HELLAS VERONA shall notify Club by registered letter (to Club’s registered seat address) and by e-mail (to the attention of Mr. Hannes D’Hoop, with e-mail address: Hannes.dhoop@clubbrugge.be) ultimately on 1 May 2020 at 23:29 CET (‘Execution Date’). In such case, Club shall be granted within 10 business days following HELLAS VERONA’s execution of the Purchase Option, an irrevocable, unconditional, first demand bank guarantee covering and guaranteeing the payment of the Permanent Transfer Agreement and any other amounts due under this Agreement (…) The irrevocable, unconditional first demand bank guarantee shall include the security for Club that Club shall be paid by the bank of its choice at Club’s first request (…). The bank guarantee shall be (partially) released following the payment by HELLAS VERONA of the aforementioned instalments.

In case HELLAS VERONA has timely executed its Purchase Option, Club shall issue the corresponding invoice including the Permanent Transfer Fee and shall render all immediately required administrative assistance in order to complete the permanent transfer of the Player (including: the termination of the Employment Agreement of the Player with Club in mutual consent, the issuance of the "no TPO letter", completion of the TMS procedure and the delivery of the ITC) as soon as reasonably possible. (…)’.

4. On 31 January 2020 10:34 CET, Hellas Verona exercised the option, by sending an email to Club Brugge, in which it requested Club Brugge to perform all required actions in TMS, before 14:00 CET, i.e. to finish the so-called “loan to permanent instruction”. Hellas Verona further informed Club Brugge that it would make the payment of the first instalment of EUR 1,750,000 within five business days.

5. After several exchanges of correspondence between the parties on 31 January 2020, it turned out that Club Brugge was only willing to release the player from loan to permanent, if Hellas Verona would pay the full transfer amount of EUR 3,500,000 to Club Brugge.

6. Still on 31 January 2020, Hellas Verona paid the full transfer amount of EUR 3,500,000 to Hellas Verona and the player was transferred on a permanent basis to Hellas Verona.

7. Upon request of Hellas Verona, FIFA Disciplinary and FIFA Regulatory Compliance investigated the above situation. The conclusion of said bodies was that FIFA Regulatory Compliance could inter alia ‘not exclude the possibility that CB could have misused TMS in breach of art. 9.2.1 of Annexe 3 of the Regulations while requiring a bank guarantee / payment of the full transfer fee upon HV’s request to enter the loan to permanent transfer in TMS’. On 23 November 2020, the FIFA Disciplinary Committee however passed a decision by means of which all charges against Club Brugge were dismissed.

8. On 7 October 2020, Hellas Verona lodged a claim against Club Brugge, claiming the reimbursement of the amount of EUR 1,750,000 (first instalment), as well as interest between 31 January 2020 and 7 February 2020 and as well as interest on the amount of EUR 1,750,000 (second instalment) as from 31 January 2020 until the date of effective payment.

9. In its claim, Hellas Verona argued that it is of the opinion that ‘the possibility to terminate the temporary transfer early is implicitly given by the possibility granted to Hellas Verona to exercise the purchase option at any time before 23:59 CET on 1st May 2020, as per article 5 of the Agreement’ and that ‘nothing in the Agreement prevented Hellas Verona from exercising the option during the winter transfer window and register the Player on a permanent basis before the end of the loan period.’

10. Furthermore, Hellas explains that ‘it was forced to pay the full transfer fee before it was due: such payment constitutes financial damage caused by Club Brugge that should be refunded to Hellas Verona.’

11. In its reply to the claim, Club Brugge explained that to the message of Hellas Verona dated 31 January, 10.34 CET, no bank guarantee (as provided for in article 5 of the transfer agreement) was attached. After discussions between the parties, in which Hellas Verona’s lawyer explained that due to the short time remaining on the transfer window it was not possible to provide said bank guarantee, Club Brugge explained that it was of the opinion that Hellas Verona wanted to renegotiate the terms of the loan agreement.

12. In view of the foregoing, Club Brugge made a counterproposal, in which it offered to complete the TMS formalities upon receipt of an amount of EUR 3,500,000, which was eventually accepted by Club Brugge.

13. Club Brugge further explains that it did not commit any contractual or regulatory breach, due to the following reasons:

- the loan agreement provided for a fixed term with no provision including the early termination of the Loan Agreement (i.e. before 30 June 2020) and therefore ‘Verona’s request to cooperate with a “loan to permanent” instruction during the winter transfer window (and thus, by doing so, effectively prematurely terminating the temporary transfer) amounted to a unilateral change to the conditions of the Loan Agreement’;

- the fact that Hellas Verona could execute the purchase option any time but ultimately before 1 May 2020 did not mean that – if said option would be exercised in January 2020 - that the transfer would also take place during the winter 2020 transfer window, as ‘the permanent transfer was always only going to take place as soon as reasonably possible in the summer transfer window after the fixed term of the temporary transfer’.

- the loan agreement provided for a clear and unconditional obligation to provide a bank guarantee. As per the loan agreement, said bank guarantee first had to be provided by Hellas Verona in order to prove its solvability, before later on the two instalments would need to be paid.

- the request from Hellas Verona to prematurely terminate the loan agreement and to change the transfer from loan to permanent is for Club Brugge clearly a request for renegotiation of the loan agreement, and that therefore, it had the right to request instead of a bank guarantee to receive the full amount of EUR 3,500,000.

- FIFA’s Disciplinary Committee decided that no wrongdoing on Club Brugge’s side could be established.

14. Club Brugge finally concludes that, would FIFA assume that a contractual breach by Club Brugge was committed, Hellas Verona did not demonstrate that it suffered any damages. In this respect, Club Brugge points out that ‘immediately after the permanent registration of the Player, the latter was sold to AFC Fiorentina for a transfer compensation reportedly amounting to EUR 20,000,000’, which clearly shows that Hellas Verona did not suffer any damages.

15. In conclusion, Club Brugge request for the rejection of all Hellas Verona’s claims.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. Taking into account the wording of art. 21 of the June 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

2. Subsequently, the Single Judge of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with matters which concern employment-related disputes with an international dimension between clubs belonging to different associations.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the claim was lodged on 26 October 2020, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Single Judge of the PSC entered into the substance of the matter. In doing so, it started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. Entering into the substance of the matter, the Single Judge noted that the parties, on 21 August 2019, concluded a transfer agreement, for the transfer on loan basis of the player Soyfan Amrabat from the Claimant to the Respondent, for the period between 21 August 2019 and 30 June 2020, without payment of any transfer compensation.

6. Also, based on the transfer agreement, the Claimant and the Respondent agreed that a unilateral option would be granted to the Respondent, based on which it would have the option to acquire the player on a permanent basis, in return for the payment of EUR 3,500,000, payable as follows:

 EUR 1,750,000 ‘within 5 business days following the completion of the TMS’;

 EUR 1,750,000 due on 15 July 2021.

7. In addition, the Single Judge noted that in order for the option to acquire the player on a definitive basis be validly exercised, the Claimant would need to (a) provide the Respondent with a notification no later than 1 May 2020, 23.59 CET, (b) within 10 days after the notification an irrevocable, unconditional, first demand bank guarantee and (c) a transfer fee of EUR 3,500,000, payable in two instalments should be paid.

8. Subsequently, the Single Judge observed that, on 7 October 2020, the Claimant lodged a claim before FIFA against the Respondent and requested the reimbursement of the amount of EUR 1,750,000, said second instalment was only payable on 15 July 2021 and was therefore paid almost one and half year early. Furthermore, the Claimant also requested the respective interests on both instalments, as also the first instalment was paid (seven days) early.

9. The Respondent, in its reply, argued that the request from Hellas Verona to prematurely terminate the loan agreement and to change the transfer from loan to permanent, was a clear request for renegotiation of the loan agreement. As a result, the Respondent deems that it had the right to request instead of a bank guarantee to receive the full amount of EUR 3,500,000.

10. Having clarified the above, the Single Judge noted that the conflicting point arising from the present case concerns whether the Claimant was forced to make a payment to the Respondent, which had not fallen due yet on 31 January 2020 and whether it is entitled to receive said amount back from the Respondent.

11. In this respect, the Single Judge noted that from the information on file it appeared that the Claimant did not wish to await the completion of the initially agreed loan period between 21 August 2019 and 30 June 2020 to sign the player on a definitive, but wished to register the player already at the winter transfer window of 2020 (which would close on 31 January 2020).

12. In this respect, it contacted the Respondent and expressed its wish to have the player registered in the winter transfer window of 2020, but failed to provide a bank guarantee as provided for in the transfer agreement. The Respondent it return informed the Claimant that it was willing to drop the requirement of a bank guarantee, in return for the full payment of the transfer fee of EUR 3,500,000 on 31 January 2020.

13. The Single Judge noted that - in order to overcome the above difficulties- the parties exchanged a series of emails in the afternoon of 31 January 2020, eventually leading to a confirmation issued by the legal representative of the Claimant, in which was confirmed that the Claimant was prepared to pay the full transfer compensation of EUR 3,500,000 on 31 January 2020. After the payment of said amount was made, it appears that the player transferred on a definitive basis to the Respondent on 31 January 2020.

14. The Single Judge was of the opinion that - based on the aforementioned circumstances - it could be validly concluded that the Claimant and the Respondent had renegotiated the condition so the transfer agreement, in order to facilitate a transfer of the player to the Respondent already at the end of the winter transfer window of 2020. As such, the Single Judge was of the opinion – even more given the confirmation of the Claimant that it was accepting that it had to make a payment of EUR 3,500,000 on 31 January 2020 – which no wrongdoing on the side of the Respondent could be established.

15. Finally, the Single Judge wished to establish that from the information on file, it could not be established that the Claimant suffered any considerable damages in relation to the fact that it had to pay an amount of EUR 3,500,000 on 31 January 2021. The Claimant did not submit any corroborating documentary evidence in this respect, and allegedly later on transferred the player for a higher transfer fee to a third club.

16. In the light of all of the above, the Single Judge decided that he must reject the claim put forward by the Claimant.

17. In continuation, the Single Judge of the PSC 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 costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings.

18. In this respect, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered. Therefore, the Single Judge established that the present decision shall be rendered without costs.

III. DECISION OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Hellas Verona, is rejected.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Procedural Rules).

CONTACT INFORMATION:

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