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 28 February 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 28 February 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 the club

Club C, country D

as “Respondent”

regarding a contractual dispute between the parties

relating to the Player E.

Player E

I. Facts of the case

1. On 24 June 2014, the club of country B, Club A (hereinafter: the Claimant) and the club of country D, Club C (hereinafter: the Respondent) signed a transfer agreement (hereinafter: the agreement), by means of which the latter would permanently transfer the Player E (hereinafter: the player) to the Claimant upon payment of a transfer fee.

2. Article 3.1 of the agreement stated inter alia that, “Transfer fee: For the definitive transfer of Player E, Club A [i.e. the Claimant] agrees to pay a Transfer Fee in the total net amount of 4,000,000.00 EUR (four million Euros) to Club C [i.e. the Respondent]”.

3. On 23 June 2016, the Claimant lodged a claim with FIFA requesting from the Respondent the reimbursement of the solidarity contribution up to 5% on the total amount of the transfer fee according to article 21 and Annexe 5 of the Regulations on the Status and Transfer of Players.

4. In this respect, the Claimant provided FIFA with a correspondence dated 10 March 2015 in which the Respondent acknowledged the payment of the entire transfer fee.

5. In continuation, the Claimant explained that, by means of a letter dated 13 June 2016, it reminded the Respondent of the allegedly outstanding amount of EUR 200,000 setting a time limit of ten days to remedy the default.

6. Consequently, the Claimant requested from the Respondent the allegedly outstanding amount of EUR 200,000 corresponding to the reimbursement of the solidarity contribution in connection with the transfer of the player or, alternatively, the amount of EUR 70,820 corresponding to the amount of solidarity contribution that the Claimant had been ordered to pay to the clubs F , G and H in accordance with the decision passed by the Dispute Resolution Chamber on 18 March 2016 in case xxx in connection with the player, plus interest at a rate of 5% per year on the said amount as from 24 June 2014 until the date of effective payment, according to art. 21 Annexe 5 of the Regulations on the Status and Transfer of Players as well as legal and proceeding costs to be borne by the Respondent.

7. In its reply to the claim lodged against it, the Respondent acknowledged that the parties concluded the agreement, however, rejected the Claimant’s claim in its entirety.

8. In this respect, the Respondent argued that the transfer fee of EUR 4,000,000 is a total and net amount free of any charge according to clause 3.1 of the agreement as the latter does not contain any provision concerning the deduction of the solidarity contribution from the transfer fee.

Player E

9. Furthermore, the Respondent pointed out the exact date on which the Claimant lodged its claim against it, requesting FIFA to provide any evidence in relation with this fact.

10. In its replica, the Claimant reiterated its initial claim.

11. In its duplica, The Respondent reiterated its position and previous arguments.

Player E

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 which edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) were applicable to the matter at hand. In this respect, considering that the present matter was submitted to FIFA on 23 June 2016, the Single Judge concluded that the 2015 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) should be applicable as to the substance of the matter. In this respect, he confirmed that the present matter was submitted to FIFA on 23 June 2016 and, therefore, concluded that the 2015 edition of the Regulations is applicable in the matter at hand as to the substance (cf. art. 26 par. 1 and par. 2 of the Regulations).

3. With regard to his competence, the Single Judge confirmed that on the basis of art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 4 as well as art. 22 lit. f) of the 2015 edition of the Regulations on the Status and Transfer of Players he is competent to deal with the matter at stake, which concerns a dispute between two football clubs affiliated to two different associations

4. In continuation and insofar, the Single Judge remarked that in its statements of defence, the Respondent pointed out the competence of FIFA ratione temporis questioning the “exact date on which the Claimant lodged the claim against it and requested FIFA to provide any evidence in relation with this fact”.

5. In this respect, the Single Judge referred to art. 25 par. 5 of the Regulations and underlined that the provision in question provided for the Players’ Status Committee or its Single Judge was not to hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute. The Single Judge also recalled that such application of the two year time limit shall be examined ex officio in each individual case.

6. In view of the above, the Single Judge deemed it fundamental to underline that in order to determine whether the matter at stake could be heard, he had to first establish which was the event giving rise to the dispute in this particular case, i.e. which had to be considered as the starting point of the time period of two years set out under art. 25 par. 5 of the Regulations.

Player E

7. In doing so, the Single Judge turned his attention to the exact date on which the Claimant lodged its claim, i.e. 23 June 2016, and recalled that the transfer agreement on which the claim was based had been signed by the parties on 24 June 2014, i.e. starting point of the two years’ time period. In conclusion, the Single Judge confirmed that the Claimant’s claim was in casu not time-barred and thus, admissible.

8. His competence and the applicable regulations having been established and entering into the substance of the matter, the Single Judge continued his analysis by acknowledging the facts of the case and the arguments of the parties 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 that he considered pertinent for the assessment of the matter at hand.

9. In doing so and to begin with, the Single Judge acknowledged that, on 24 July 2014, the Claimant and the Respondent concluded an agreement in relation to the transfer of the player upon payment of a transfer fee in the amount of EUR 4,000,000.

10. In this context, the Single Judge noted that on 10 March 2015 the Respondent confirmed to the Claimant the payment of the transfer fee, nevertheless the fact that the latter had omitted to deduct the relevant proportion of said compensation for the reimbursement of the distribution of the solidarity contribution in relation with the transfer of the player.

11. In continuation, the Single Judge observed that the Claimant maintained that it was entitled to receive from the Respondent the reimbursement of the solidarity contribution up to 5% of the transfer fee, i.e. EUR 200,000, in relation with the transfer of the player and according to art. 21 and Annexe 5 of the Regulations, or, alternatively, the amount of EUR 70,820 corresponding to the solidarity contribution that the Claimant had been ordered to pay to the clubs F, G and H in accordance with the decision passed by the Dispute Resolution Chamber on 18 March 2016 in case xxx in connection with the player.

12. In this regard, the Single Judge referred to art. 21 of the Regulations in combination with art. 1 of Annexe 5 of the Regulations which stipulate that, if a professional moves during the course of a contract, 5% of any compensation, not including training compensation paid to his former club, shall be deducted from the total amount of this compensation and be distributed by the new club as a solidarity contribution to the club(s) involved in the training and education of the

Player E player in proportion of the number of years the player has been registered with the relevant club(s) between the seasons of his 12th and 23rd birthday.

13. Moreover, the Single Judge outlined that the solidarity mechanism is a principle well-established in the Regulations, from which the parties signing a transfer contract cannot derogate through the contents of a contract. In other words, the obligation to distribute solidarity contribution cannot be set aside by means of a contract concluded between the clubs involved in a player’s transfer.

14. With due consideration to the above, the Single Judge referred to the well-established jurisprudence of the Dispute Resolution Chamber (DRC) with regard to cases in which the player’s new club does not withhold 5% of the agreed transfer compensation when paying such transfer compensation, but nevertheless is asked to distribute solidarity contribution to the player’s training clubs.

15. According to the mentioned jurisprudence, the player’s new club is ordered to remit the relevant proportion(s) of the 5% solidarity contribution to the club(s) involved in the player’s training and education in strict application of art. 21 and art. 1 and art. 2 of Annexe 5 of the Regulations. At the same, according to said well-established jurisprudence, the player’s former club is ordered to reimburse the same proportion(s) of the 5% of the compensation that it received from the player’s new club.

16. Equally, the Single Judge considered that, in the present case, it remained undisputed that the Claimant had paid 100% of the transfer compensation to the Respondent, i.e. EUR 4,000,000.

17. At this stage, the Single Judge turned his attention to the documents on file and, in particular, to the contents of the decision passed by the Dispute Resolution Chamber on 18 March 2016 in case xxx in connection with the player stating the amount of EUR 70,820, as submitted by the Claimant, corresponding to the solidarity contribution that the Claimant had been ordered to pay to the clubs F, G and H.

18. In continuation, the Single Judge emphasized that, for its part, the Respondent alleged that according to art. 3.1 of the agreement, the amount of EUR 4,000,000 as transfer fee is a total and net amount. The Respondent further claimed that no deduction for reimbursement of the solidarity contribution is due as the agreement should have contained a specific clause to this end.

19. In casu, taking into account the Claimant’s request as well as the constant practice of the Players’ Status Committee, the Single Judge deemed that the Claimant did

Player E provide enough conclusive evidence in order to establish that, first of all, he is entitled to the reimbursement of the solidarity contribution in relation with the transfer of the player in accordance with art. 21 and Annexe 5 of the Regulations and that such amount has to be deducted from the transfer compensation already paid by the Claimant to the Respondent. For the sake of good order, the Single Judge deemed important to emphasize that, considering the binding provisions regarding solidarity contribution as set forth in the regulations, a contract clause in which the net amount should include the relevant solidarity deduction, such clause must make clear reference to solidarity contribution.

20. Consequently, considering that the provisions in the Regulations governing the solidarity mechanism system are mandatory as well as the argumentation and documentation presented by both parties, the Single Judge considered that the Respondent is liable to pay to the Claimant the amount of EUR 70,820, plus interest at a rate of 5% p.a. on the said amount as from 23 June 2016 until the date of effective payment as reimbursement of the solidarity contribution in relation with the transfer of the player.

21. In addition, with regard to the Claimant’s request related to the claimed legal costs, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Single Judge decided to reject the Claimant’s request relating to legal costs.

22. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and held that the Respondent has to pay to the Claimant the amount of EUR 70,820, plus interest at a rate of 5% p.a. on the said amount as from 23 June 2016 until the date of effective payment and that any further claims lodged by the Claimant are rejected.

23. 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 the proceedings before the Players’ Status Committee, including its 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 (cf. art. 18 par. 1 of the Procedural Rules).

24. In respect of the above, and taking into account that the Claimant’s claim was partially accepted, the Single Judge concluded that both the Claimant as well as the Respondent have to bear a part of the costs of the current proceedings before FIFA.

Player E

25. 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 at dispute in the present matter is up to EUR 200,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

26. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 14,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 7,000 has to be paid by the Claimant and the amount of CHF 7,000 by the Respondent.

Player E

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

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

2. The claim of the Claimant, Club A, is partially accepted.

3. The Respondent, Club C, has to pay to the Claimant, Club A, within 30 days as from the date of notification of this decision, the amount of EUR 70,820 as well as 5% interest per year on the said amount from 23 June 2016 until the date of effective payment.

4. If the aforementioned sum, plus interest, is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

5. Any further claims lodged by the Claimant, Club A, are rejected.

6. The final costs of the proceedings in the amount of CHF 14,000 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 7,000 by the Claimant, Club A, to FIFA. Given that the Claimant, Club A, has already paid the amount of CHF 4,000 as advance of costs at the start of the present proceedings, the Claimant, Club A, shall pay an additional amount of CHF 3,000.

6.2 The amount of CHF 7,000 by the Respondent, Club C, to FIFA.

Player E

6.3 The abovementioned amounts foreseen in points 6.1 and 6.2 have to be paid 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

Player E

7. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 3 above is 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

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS directives