F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2016-2017) – fifa.com – atto non ufficiale – Decision 8 May 2017

Decision of the

Single Judge

of the

Players’ Status Committee

passed in Zurich, Switzerland, on 8 May 2017,

by

Raymond Hack (South Africa)

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 Player E

Player E

I. Facts of the case

1. On 11 July 2013, the Club of Country B, Club A (hereinafter: the Claimant), and the Club of Country D, Club C (hereinafter: the Respondent), concluded a transfer agreement on the transfer of the player, Player E, from the Claimant to the Respondent against payment of the amount of EUR 4,000,000.

2. Clause 2 c) of the transfer agreement stipulated that the Respondent shall pay to the Claimant the following additional and variable amounts (hereinafter: the conditional transfer fee):

- EUR 500,000 if the player made 25 appearances of at least 45 minutes each with the Respondent’s first team in the Championship of the Country D Football League; and

- EUR 500,000 if the player made 50 appearances of at least 45 minutes each with the Respondent’s first team in the Championship of the Country D Football League.

Equally, the parties agreed that in case of a subsequent definitive transfer of the player to a third club for a total transfer compensation higher than EUR 4,000,000, both of the aforementioned amounts would become due, even if the aforementioned appearance conditions would not have been met yet, within 90 days as from the date on which the condition under which the conditional transfer fee falls due actually occurs.

Furthermore, the parties agreed that “in the event of a delay in the payment of any of the amounts mentioned in the transfer agreement for more than 10 days, the remainder will become immediately due and an interest rate of 5% p.a. will apply”.

3. Clause 5 of the transfer agreement reads as follows:

“Any and all disputes arising out of or in connection with this agreement will be submitted either to the FIFA Players’ Status Committee or to the Court of Arbitration for Sport (CAS)”.

4. In July 2014, the Respondent transferred the player to the Club of Country D, Club F, on a definitive basis, against the payment of EUR 3,500,000, plus a conditional transfer fee of EUR 1,000,000 if the player makes 20 appearances with Club F (hereinafter: the subsequent conditional transfer fee) or is subsequently transferred to a third club.

5. On 11 August 2016, the Claimant lodged a claim before FIFA against the Respondent requesting to be awarded EUR 1,000,000, plus 5% interest p.a. as of 4 July 2015 for the alleged outstanding conditional transfer fee, that the Respondent bear all legal expenses incurred and the procedural costs and that sanctions be imposed on the Respondent.

6. In this respect, the Claimant argued that, on 11 December 2013, it lodged a claim against the Respondent before CAS for the outstanding transfer fee and that from the arbitral award it learnt the economic terms of the player’s transfer from the Respondent to Club F.

Player E

7. In this context, the Claimant provided a copy of a mass media report, according to which, in the 2014/2015 season, the player participated in 22 matches for Club F and that his 20th match was on 4 April 2015. In this respect, the Claimant held that, as a result of the player’s appearances with Club F, the subsequent conditional transfer fee in favour of the Respondent fell due. Consequently, the total amount paid by Club F to the Respondent exceeded EUR 4,000,000, resulting in the Claimant’s entitlement to the conditional transfer fee in the amount of EUR 1,000,000 (cf. point I./2. above).

8. Furthermore, the Claimant submitted copies of its correspondence dated 23 September 2015 and of a default notice dated 12 May 2016 addressed to the Respondent for the conditional transfer fee and stated that it unsuccessfully tried to solve the present matter amicably.

9. As to the Claimant’s request to sanction the Respondent, the Claimant asserted that the present dispute arose only due to the Respondent’s misconduct and inadmissible attitude and that it was the second time it had to seek redress in front of the jurisdictional bodies in connection with the present transfer agreement, which shall be considered as an aggravating circumstance resulting in a more severe penalty to be imposed on the Respondent as per art. 12 par. 6 of the FIFA Regulations on the Status and Transfer of Players.

10. In its reply to the Claimant’s claim, the Respondent stated that “in principle, and without prejudice to any further position which we may have to adopt in the future, we are making provision to pay the claimant what is contractually due and will hopefully be in a position to make the relevant payment shortly”.

11. On 20 February 2017, the Claimant confirmed that the Respondent neither contacted it nor made any payments until said date and, consequently, insisted on a formal decision being passed in the present matter.

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 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) are applicable to the matter at hand. In this respect, he referred to art. 21 of the Procedural Rules as well as to the fact that the present matter was submitted to FIFA on 11 August 2016. Therefore, the Single Judge concluded that the 2015 edition of the 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 Regulations on the Status and Transfer of Players (edition 2016) and, on the other hand, once again to the fact that the claim was lodged before FIFA on 11 August 2016. In view of the foregoing, the Single Judge concluded that the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand.

Player E

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 concerns a dispute between 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. In this respect, the Single Judge noted that the parties had concluded a transfer agreement on 11 July 2013 for the transfer of the player from the Claimant to the Respondent for the amount of EUR 4,000,000, plus a conditional transfer fee of up to EUR 1,000,000 linked to the player’s appearances with the Respondent or his subsequent definitive transfer for a compensation exceeding EUR 4,000,000.

6. Having established the aforementioned, the Single Judge took note that the Claimant maintained that it was entitled to receive from the Respondent the amount EUR 1,000,000, as the player had been transferred from the Respondent to Club F against the payment of EUR 3,500,000, plus a conditional payment of EUR 1,000,000 if the player made 20 appearances with Club F. According to the Claimant, the conditions relating to this additional payment of EUR 1,000,000 were met, as a result of which the total transfer fee for the subsequent definitive transfer of the player to Club F amounted to EUR 4,500,000.

7. In continuation, the Single Judge observed that the Respondent did not dispute the amounts that according to the Claimant were due by Club F to the Respondent on the basis of the player’s subsequent definitive transfer to Club F or the Claimant’s claim that it is entitled to receive the conditional transfer fee of EUR 1,000,000 in accordance with art. 2 c) of the transfer agreement.

8. Consequently, and after having analysed the argumentation and documentation on file in the present matter, the Single Judge concluded that the player was subsequently transferred from the Respondent to Club F on a definitive basis against the payment of EUR 3,500,000 plus a subsequent conditional transfer fee. In addition, the Single Judge established that the player participated in at least 20 matches of Club F, triggering the obligation of Club F to pay the subsequent conditional transfer fee of EUR 1,000,000 to the Respondent. In light of the foregoing, the Single Judge took the view that the total transfer compensation for the subsequent definitive transfer of the player from the Respondent to Club F exceeded EUR 4,000,000.

9. On account of the above and in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge decided that the Respondent has to fulfill its contractual obligations towards the Claimant and must pay the conditional transfer fee in the amount of EUR 1,000,000 to the Claimant.

Player E

10. Having established the above, the Single Judge went on to examine the Claimant’s request to be awarded 5% interest p.a. In this respect, the Single Judge referred to clause 2 c) of the transfer agreement, to the longstanding practice of the Players’ Status Committee as well as to the fact that it remained undisputed that the player’s 20th match with Club F was on 4 April 2015, and concluded that the Respondent has to pay 5% interest p.a. on EUR 1,000,000 as of 4 July 2015 until the date of effective payment.

11. Equally, and turning his attention to the Claimant’s request related to legal expenses, the Single Judge referred to art. 18 par. 4 of the Regulations in accordance with which no procedural compensation shall be awarded in proceedings before the Players’ Status Committee. As a consequence, the Single Judge decided that this part of the Claimant’s claim had to be rejected.

12. 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).

13. In respect of the above, taking into account that the Claimant’s claim is nearly fully accepted, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA.

14. 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 exceeds CHF 200,001. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

15. In conclusion, and considering the specific circumstances of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000.

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 1,000,000, plus 5% interest p.a. as of 4 July 2015 until the date of effective payment.

3. If the aforementioned sum plus interest 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.

Player E

5. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent within 30 days of notification of the present decision as follows:

5.1 The amount of CHF 20,000 to FIFA 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

5.2 The amount of CHF 5,000 to the Claimant.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 5.2 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 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

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS Directives

Player E

(Club A, Country B / Club C, Country D)

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