F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – players’ and match agents disputes / controversie agenti di calciatori – fifa.com – atto non ufficiale – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 28 June 2017

Decision of the Single of the Players’ Status Committee

passed in Zurich, Switzerland, on 28 June 2017,

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

Company C

as “Respondent”

regarding a contractual dispute arisen between the parties.

I. Facts of the case

1. On 31 May 2013, the club of Country B, Club A (hereinafter: the Claimant), the club of Country D, Club E, the player of Country B, Player F (hereinafter: the player) and father of Player F (hereinafter: the father of the player), acting as representative of the player and of the Company C (hereinafter: the Respondent), signed a transfer agreement (hereinafter: the transfer agreement) for the transfer of the player to Club E by means of which the latter undertook to pay to the Claimant EUR 17,100,000, on 7 June 2013, as transfer fee.

2. According to clause 3.3. of the transfer agreement, the transfer fee was to be understood as the entire compensation payable to the Claimant for 100% of the player´s federative and economic rights, including both those owned by the Claimant and those owned by third parties.

3. In accordance with clause 4.2. of the transfer agreement, the player agreed not to receive any payment in connection with his transfer to Club E and both the Claimant and Club E undertook not to pay him any amount in this regard.

4. Similarly, the Respondent agreed not to receive any payment in connection with the transfer of the player to Club E and both the Claimant and Club E undertook not to pay to it any amount in this regard (cf. clause 5 of the transfer agreement).

5. Clause 9 of the transfer agreement included a jurisdiction clause in favour of FIFA as first instance as per art. 22 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) and CAS as appeal body, for any disputes based on said agreement and involving its parties. The same clause provided for FIFA’s Rules and Regulations to be applied in case of a dispute and for English to be used as the language of the proceedings.

6. On 27 May 2015, the Claimant lodged a claim in front of FIFA against Club E, the player, the father of the player and the Respondent (hereinafter: the defendants), requesting the payment of compensation in the amount of EUR 61,295,000, plus 8% interests p.a.. In addition, the Claimant requested the reimbursement of all expenses and fees incurred in connection with the proceedings.

7. The Claimant’s request is addressed to the Players’ Status Committee (PSC) who should allegedly decide over the entire claim in accordance with the arbitration clause and art. 22 lit. f) in connection with art. 23 of the Regulations and apply Swiss law “to matters not covered by the FIFA Statutes and Regulations”.

8. The general claim of the Claimant has been divided by the FIFA administration into several separate claims in reason of the scope of competence of FIFA’s deciding bodies and/or of the different respondents; the present decision concerns the claim against the Respondent only.

9. In general, the Claimant accused the defendants of having lied to it during the negotiations that had finally led to the conclusion of the transfer agreement, concealing the fact that the transfer in question had allegedly already been planned in advance without its knowledge. According to the Claimant, several payments had secretly been made by Club E to the player and to his father, mainly using third companies as cover up, in order to secure the transfer.

10. The Claimant alleged that the transfer of the player to Club E had occurred under the pressure of the player and of his father and added that other Continental clubs had offered to pay a much higher sum for his transfer. According to the Claimant, the player had rejected all offers received, apart from the one of Club E, and had also declined to remain in its squad.

11. In particular, the Claimant alleges that the additional sum of EUR 61,295,000 (cf. point I.6 above) would have been paid by Club E in connection with the transfer of the player without its knowledge, and in support of that it referred to proceedings pending in Country D, which unveiled the existence of several agreements concluded between Club E, the player, the father of the player and two companies “wholly-owned by the Family of Player F (50% each of the Player’s parents)”, i.e. Company G and Company H.

12. Such payments would have been described by the Criminal court of Country D as “part of the acquisition costs” for the player and were therefore, in the Claimant’s opinion, “to be understood as the price paid for the transfer of Player F to Club E”.

13. All in all, the Claimant calculated that EUR 78,395,000 were spent by Club E to obtain the player in its squad (i.e. EUR 61,295,000 as mentioned above and EUR 17,100,000, as transfer fee).

14. From the Claimant’s point of view, in “light of the dealings between the Defendants it was not possible (...) to retain the Player, sell him to another club other than Club E, or sell him to Club E for a higher price, (...) any further efforts (...) in this regard would have (...) been in vain.” “Had Club A[i.e. the Claimant] known about the concealed dealings among the Defendants, Club A would have never transferred the Player to Club E, or at least not for the price agreed in the Transfer Agreement (...)”.

15. As a result of all the aforementioned, the Claimant deemed that the defendants had committed civil fraud in the sense of art. 28 of the Swiss Code of Obligations (SCO) and art. 3.2.5. of the UNIDROIT Principles and had therefore to “jointly and severally” pay compensation for the damages caused.

16. According to the Claimant, compensation was also due in accordance with art. 97 and 98 of the SCO as well as art. 7.4.1 of the UNIDROIT Principles as consequence of having breached art. 4.2. and art. 5 of the agreement (cf. points I.3 and I.4 above).

17. Pursuant to the Claimant, without the “wrongful acts or breached” of the defendants, it “would have been able to sell the Player for his market price”. Therefore, the damage incurred consisted in “the difference of the price of the Player under the Transfer Agreement (..) and the market price that Club A would have received at the time of the Transfer Agreement (..) for the Player”.

18. Thus, the Claimant requested from Club E, the player, the father of the player and the Respondent the payment of EUR 61,295,000 (i.e. EUR 78,395,000 – EUR 17,100,000) as compensation for their wrongful behaviour. The Claimant also requested interest in the amount of 8% p.a. over such amount.

19. By means of its correspondence dated 9 July 2015 and 25 January 2017 respectively, FIFA informed the Claimant of the lack of competence of its deciding bodies to deal with the claim against the Respondent, in accordance with art. 6 par. 1 of the Procedural Rules.

20. Nevertheless, the Claimant insisted that a decision should be taken by FIFA in this respect on the basis of the arbitration clause as well as in accordance with art. 22 lit. f) and 23 par. 1 of the Regulations.

21. In addition, the Claimant was of the opinion that the right of all parties to be heard would be compromised if FIFA declines its competence over certain defendants.

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 simply referred to as: the Single Judge) analysed which procedural rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 27 May 2015, the Single Judge of the Players’ Status Committee 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) is applicable to the present matter (cf. art. 21 of the Procedural Rules).

2. With regard to his competence, the Single Judge recalled that in accordance with art. 6 par. 1 of the Procedural Rules, “[P]arties are members of FIFA, clubs, players, coaches or licensed match agents”. In this respect, the Single Judge pointed out that neither art. 6 par. 1 of the Procedural Rules nor any other provision in FIFA’s complete regulatory framework provides the basis to establish its competence to hear disputes involving a company.

3. In view of the above, the Single Judge concluded that he lacked the competence to enter the substance of the present matter due to the fact that the Respondent cannot be considered as a party in front of FIFA in the sense of art. 6 par. 1 of the Procedural Rules.

4. In addition and for the sake of good order, the Single Judge was eager to emphasize that the jurisdiction of FIFA’s deciding bodies derives from the Regulations and the FIFA Statutes only, and not from private agreements between parties. In this respect, the Single Judge pointed out that clause 9 of the transfer agreement (cf. point I.5 above) contradicted art. 6 par. 1 of the Procedural Rules as well as art. 22 of the Regulations (in all their editions) and, consequently, it was to be considered as not applicable. The Single Judge further highlighted that, if the line of reasoning of the Claimant with regard to the competence of FIFA would be followed, then the Single Judge would be acting against FIFA’s own Regulations, Procedural Rules and Statutes, i.e. the legal framework which defines his competence.

5. Finally, the Single Judge referred to art. 25 par. 2 of the Regulations (in all their editions) in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Players’ Status Committee and the Single Judge, 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 and are normally to be paid by the unsuccessful party.

6. In this respect, the Single Judge reiterated that the claim of the Claimant is not admissible. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA.

7. 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. Consequently and taking into account that the total amount in dispute in the present matter is over CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

8. In conclusion, considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore, that the present case did not show any particular factual difficulties and specific legal complexities, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000.

9. Consequently, the Single Judge decided that the Claimant has to pay the amount of CHF 15,000 in order to cover the costs of the present proceedings.

III. Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Club A, is inadmissible.

2. The final costs of the proceedings in the amount of CHF 15,000 are to be paid by the Claimant, Club A, within 30 days as from the date of notification of the present decision, to the following bank account with reference to case nr. XXX:

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 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

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS directives