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 June 2017

Decision of the Single Judge

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 the club

Club C, Country D

as “Respondent”

regarding a contractual dispute arisen between the parties

and relating to the player, Player E.

I. Facts of the case

1. On 31 May 2013, the Claimant, the Respondent, the Player of Country B, Player E (hereinafter: the player) and the Players Father F (hereinafter: the father of the player), acting as representative of the player and of the company, Company G (hereinafter: Company G), signed an agreement for the transfer of the player (hereinafter: the transfer agreement) to the Respondent 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 (NB the original document is in Spanish and Portuguese).

3. As per clause 3.4 of the transfer agreement, the Respondent had to pay to the Claimant administrative duties in accordance with Law of Country B in the amount of 1% of the transfer fee.

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

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

6. Clause 8 of the transfer agreement specified that the parties had to keep its content confidential. In case of non-compliance, the same clause provided for an unspecified amount of compensation to be paid by the party at fault.

7. 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 the appeal body. 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.

8. On 31 May 2013, the Claimant and the Respondent concluded an addendum to the transfer agreement (hereinafter: the addendum), by means of which the Respondent undertook to pay to the Claimant the sum of EUR 6,840,000. The relevant amount corresponded to the sum owed by the Claimant to the company, Company H (hereinafter: Company H).

9. By means of a document dated 31 May 2013 (hereinafter: the statement), the Respondent undertook to pay to the Claimant the sum of EUR 2,000,000 in case the player was nominated among one of the three finalists of the Award S during the validity of his employment contract with the Respondent, payable one month after the nomination.

Player E, Country B (Club A, Country B / Club C, Country D) 3

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

11. 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”. According to the Claimant, “the Players’ Status Committee must apply the FIFA Statutes and Regulations, and apply Swiss law to matters not covered by the FIFA Statute and Regulations”.

12. FIFA divided the claim of the Claimant into several separate claims in reason of the scope of competence of FIFA’s deciding bodies and of the different respondents. The proceedings at hand concern only the contractual dispute between the Claimant and the Respondent, on the basis of the transfer agreement.

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

14. The Claimant clarified that a criminal investigation started in Country D against inter alia the Respondent had uncovered the aforementioned scheme of the parties and revealed that the total sum of EUR 78,395,000 was paid by the Respondent in connection with the transfer of the player (i.e. the transfer fee in the amount of EUR 17,100,000 plus EUR 61,295,000). The same investigation had apparently also revealed that some payments were made “even before the execution of the Transfer Agreement in order to prevent any negotiations with other football teams (..).”

15. The Claimant further claimed to have had a contractual relationship with the player valid until July 2014, which had started in 2010.

16. Furthermore, the Claimant elucidated that, by means of a document dated 8 November 2011 (hereinafter: the authorization letter), the player, upon his request and the insistence of his father, was given permission to “engage in discussions – but not negotiations- with other football clubs (..) subject to following 2 conditions (..) any transfer should take place after July 13, 2014; and such transfer should respect all terms and conditions of the 2011 Employment agreement”. The Portuguese terms of the authorisation letter are the following: “Club A (..) informa expressamente que concorda e autoriza o Atleta Player E a iniciar, desde já, tratativas com quaisquer entidades de prática desportiva, nacionais ou internacionais, podendo concretizar eventual transferência desde que isso somente ocorra a partir de 2014 e respeite os termos do contrato mantido com o Club A”.

17. The Claimant alleged that the transfer of the player to the Respondent had occurred under the pressure of the player and of his father and added that other European clubs

had offered to pay a much higher sum for his transfer. “However, all such proposals neither satisfied the Player nor his Agent [i.e. the father of the player]. Instead, the Player and his Agent insisted that Club C was the sole destination intended by the Player”.

18. According to the Claimant, the player had rejected all offers received, apart from the one of the Respondent, and had also declined to remain in its squad.

19. In support of the allegation that the additional sum of EUR 61,295,000 would have been paid by the Respondent in connection with the transfer of the player without its knowledge, the Claimant referred to the relevant proceedings pending in Country D and explained that they had unveiled the existence of several agreements concluded between the Respondent, the player, his father and two companies “wholly-owned by the Players Family (50% each of the Player’s parents)”, i.e. Company J (hereinafter: Company J) and Company K (hereinafter: Company K) after the issuance of the authorisation letter.

20. According to such agreements, the Respondent would have made the following additional payments in relation to the transfer of the player:

a) EUR 40,000,000 to Company J for the economic and federative rights of the player;

b) EUR 8,500,000 to the player and Company J, as signing on fee “for accepting the transfer of the Player’s federative rights (..)”;

c) EUR 1,500,000 to Company K as signing on fee “for accepting the transfer of the Player’s federative rights (..)”;

d) EUR 2,795,000 to the father of the player and Company J as commission for the father of the player (5%);

e) EUR 2,000,000 to Company J for “scouting services”;

f) EUR 4,000,000 to Company J as “part of the remuneration of Company J and K for the transfer of the Player to Club C”;

g) EUR 2,500,000 to “Company L”, a “not-for-profit foundation controlled by Player E [i.e. the player]”.

21. Such payments were allegedly 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 E. to Club C”. In this respect, the Claimant provided FIFA with a decision of the National Court of Country D, Capital M, dated 13 March 2015, by means of which it is established that the pre-trial proceedings against inter alia the Respondent can be carried on with regard to the accusation of having committed crimes against the Treasury of Country D and of fraudulent administration. In such decision it is inter alia mentioned that the Respondent would have spent EUR 83,371,000 between 2011 and 2014 to acquire the player.

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

23. 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 C, or sell him to Club C for a higher price, (..) any further efforts (..) in this regard would have (..) been in vain.”

24. “Had Club A known about the concealed dealings among the Defendants, Club A would have never transferred the Player to Club C, or at least not for the price agreed in the Transfer Agreement (..)”.

25. As a result of all the aforementioned, the Claimant deems that the defendants 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 “in order to obtain the execution of the Transfer Agreement on highly favourable terms” and had therefore to “jointly and severally” pay compensation for the damages caused.

26. 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 a consequence of having breached art. 4.2 and art. 5 of the agreement, i.e. of the provisions which “were intended to ensure that Club A would receive the full market price for the player”.

27. In continuation, the Claimant explained that, from its point of view, EUR 78,395,000, i.e. the total sum allegedly spent by the Respondent for the player, was to be considered as the market value of the player at the time of his transfer to the Respondent and was the sum to be taken into account in the present proceedings in order to calculate the compensation due by the parties at fault.

28. 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”.

29. Accordingly, the Claimant calculated the damages suffered “by subtracting the amount effectively received (..) from the Player’s market value” and determined that such damage amounted to EUR 61,295,000 (i.e. EUR 78,395,000 – EUR 17,100,000).

30. Thus, the Claimant requested from the Respondent, the player, his father and Company G the payment of EUR 61,295,000 as compensation for their allegedly wrongful behaviour.

31. In addition and as per art. 3.4 of the transfer agreement (cf. point I.3 above), the Claimant considered that the Respondent had to pay the “applicable administrative duties on any compensation, which amount to 1% of the Player’s market value (i.e. EUR 612,950)”.

32. The Claimant also requested, in accordance with Swiss law, interests in the amount of 8% p.a. to be added on all claimed amounts. The relevant 8% p.a. allegedly corresponded to the “official interest Rate in Country B on May 31, 2014” and was, in casu, to be applied as the “amounts due under the Transfer were paid to Club A in Country B”.

33. Similarly, the Claimant accused the Respondent, the player and his father of having breached several FIFA regulations and requested for the appropriate sanctions to be applied by the PSC, the FIFA Disciplinary Committee or the relevant association.

34. In particular with regard to the Respondent, the Claimant accused it of having breached inter alia art. 62 of the Disciplinary Code and requested for the following sanction to be applied in compliance with art. 40 and 41 of the Disciplinary Code: “Confiscation of all the amounts – directly or indirectly – paid to the Player and his entourage as part of the transfer of his federative and economic rights (other than those paid under the Transfer Agreement)”.

35. The Claimant further accused the Respondent of having breached art. 4 par. 2 and 6 of Annexe 3 of the Regulations by having failed to include in the Transfer Matching System (TMS) the real price paid for the player and requested for the following sanctions to be implemented in accordance with art. 9 par. 1 and 2 of the Regulations in connection with art. 41 of the Disciplinary Code: “a fine of CHF 1,000,000 and a ban from registering any new players, either nationally or internationally, for three entire and consecutive registration periods”.

36. Equally, the Claimant deemed that “disciplinary sanctions should also been imposed on Club C’s officials involved, namely: Messrs. President N (then president of Club C), Vicepresident O (then-vicepresident of Club C), and Vicepresident P (then-vicepresident of Club C).” From the Claimant’s point of view, “the correct reading of article 23 (1) of the RSTP [i.e. the Regulations] is that the Players’ Status Committee has jurisdiction to impose sanction on the Non-Contractual Parties for a violation of article 17 (5) of the RSTP”. In the alternative, the Claimant requested for the Disciplinary Committee of FIFA to sanction the mentioned individuals as per art. 3 of the Disciplinary Code.

37. On 22 June 2015, the Claimant provided FIFA with a document entitled “valuation report of the federative and economic rights of Player E on May 31, 2013” drafted by “Prof. Q” and “Prof. R” establishing that “the total price agreed to be paid by Club C of EUR 78,395,000 was the Player’s fair market value on May 31, 2013” and is “consistent with the values of transactions involving comparable football players”.

38. In its reply to the Claimant’s claim dated 15 October 2015, the Respondent rejected the claim of the Claimant in its entirety.

39. Preliminarily, the Respondent contested FIFA’s competence to take a decision in the dispute at stake arguing that it could prejudicially affect the proceedings pending in Country D.

40. The Respondent also argued the prescription of the claim on the basis of art. 25 par. 5 of the Regulations.

41. As to the substance of the Claimant’s claim regarding specifically the alleged breach of the transfer agreement concluded between the clubs, the Respondent claimed that the authorization letter did not prevent the player from entering into an agreement with a third club nor obliged the latter to inform the Claimant of the existence of such an agreement.

42. The Respondent further explained having concluded an agreement with the owner of the player’s rights, i.e. the company, Company J and K on 11 November 2011 (hereinafter: the 2011 agreement), in accordance with which the latter had undertaken to choose the Respondent as the next club of the player after the expiration of his employment contract with the Claimant, in exchange of the payment of EUR 40,000,000. The relevant agreement was concluded between the Respondent, the player and Company J.

43. According to the Respondent, a penalty clause was included in the 2011 agreement in accordance with which, in case of non-compliance with its terms and conditions, one of them being the conclusion of an employment contract between the Respondent and the player by 25 August 2014, either party could claim the payment of EUR 40,000,000 as penalty.

44. The Respondent also alleged that EUR 10,000,000 were paid to Company J as loan under the terms of the 2011 agreement.

45. Furthermore, the Respondent clarified that following an increased interest in the player by several European clubs, the Claimant had unexpectedly decided to transfer the latter before the termination of their contractual relationship in order to obtain a potentially high transfer fee, obliging the Respondent to breach the 2011 agreement by signing the player before 25 August 2014 in order not to lose him, and then having to pay EUR 40,000,000 as penalty to Company J.

46. Hence, from the Respondent’s point of view, the sum of EUR 40,000,000 paid to Company J could not be considered as part of the transfer fee for the player. The Respondent underlined in this sense that not all costs in which a club incurs to recruit a player are to be considered as part of the transfer fee paid for such player.

47. The Respondent further contested having breached Annexe 3 of the Regulations emphasizing that all relevant and mandatory information was entered into the TMS system. In the same context, the Respondent clarified that the TMS compliance office had been informed of the payment of EUR 40,000,000 made to Company J.

48. The Respondent also denied the existence of a connection between a scouting agreement concluded with Company J (cf. point I.20 e) above) and the transfer of the player to the Respondent as well as the allegation that a representation agreement concluded with Company J would have been associated to such transfer. The Respondent added that the relevant scouting agreement was concluded in connection with a cooperation agreement signed with the Respondent on 25 July 2013.

49. The Respondent also elucidated that the proceedings pending in Country D only concerned an alleged tax fraud related to the income of the player and never mentioned the existence of a scam associated to the transfer of the player nor the fact that all payments made by the Respondent in connection with such transfer would be part of the transfer fee paid.

50. In the same context, the Respondent accused the Claimant of having consciously omitted to mention that it was itself a party to criminal proceedings opened in Country D by the company, Company H and accused the Claimant of having opened the present proceedings with the sole purpose of deviating the attention from such criminal investigation.

51. Thus, the Respondent contested having committed any kind of fraud or having breached the transfer agreement.

52. According to the Respondent, the purpose of art. 4.2 of the agreement was to avoid having to pay 15% of the transfer fee to the player as required by Law of Country D. The Respondent alleged that such a clause is usually included in international transfer agreements involving a Club of Country D where Law of Country D is applicable.

53. Equally, the Respondent emphasized that art. 3.3 of the agreement concerned solely the obligation of Club A to pay the company, Company H.

54. In its replica on 24 November 2015 and 7 March 2016, the Claimant reiterated the content of its previous submission.

55. Furthermore, the Claimant insisted on FIFA being competent to take a decision in the dispute at stake and rejected the Respondent’s request to suspend the proceedings in view of the criminal proceedings pending in Country D.

56. Equally, the Claimant contested the allegation that its claim would be time-barred.

57. In continuation, the Claimant referred to art. 9 of the transfer agreement (cf. point I.7 above) and stressed that it provided for “any dispute resolution proceedings be conducted in English”. As a result, the Claimant requested FIFA “to instruct Club C to file its subsequent pleading in English or otherwise not admit them into record”.

58. Subsequently, the Claimant accused the Respondent of having failed to pay EUR 2,000,000 in accordance with the statement (cf. point I.9 above) after the player was named a finalist for the Award S on 30 November 2015 and of having violated, together with the player, the confidentiality of their contractual relationship by disclosing “in the press around the world confidential details about the Transfer Agreement and the present proceedings”.

59. As a result, the Claimant requested from the Respondent the additional payment of EUR 2,000,000 in accordance with the statement, and of EUR 100,000, for which the player would be jointly and severally liable, as compensation for having breached clause 8 of the transfer agreement, plus 8% interest p.a..

60. The Claimant further maintained having informed FIFA “of all ongoing and contemplated Criminal Proceedings at the time of statement of claim” and clarified that “the criminal proceedings resulting from Company H’s criminal complaint [against the Claimant] was not initiated until June 17, 2015”.

61. Similarly, the Claimant contested having lodged its claim with FIFA as a reaction to Company H’s criminal complaint and elucidated that such complaint only concerned the two friendly matches and the cooperation agreement concluded with the Respondent after the transfer agreement.

62. In addition, the Claimant clarified inter alia that neither the two friendly match agreements nor the cooperation agreement were linked to the transfer agreement and, therefore, “must not be taken into consideration for the calculation of the price paid by Club C to acquire the Player”.

63. While insisting on claiming that all amounts paid by the Respondent to the player, his father “and the Players Family Companies” were to be considered as part of the transfer fee paid in connection with the transfer of the player, the Claimant additionally provided FIFA with a copy of the agreements mentioned in its statement of claim.

64. The Claimant explained the relevant agreements as follows:

a. The “Career Planning Agreement” and an “Amended Career Planning Agreement” were concluded between Company J and the player on 27 April and on 10 November 2011, respectively. With the “Amended Career Planning Agreement” Company J “acquired the right to decide to which football club the Player was to be transferred when he became a free agent” upon the termination of his contractual relationship with the Claimant, preventing him to decide with which club he wanted to conclude an agreement “in violation of the spirit of Article 18bis” of the Regulations;

b. The 2011 agreement (cf. point I.42 above) which, with “its irrevocable nature prevented Player E and Company J from negotiating with third-party club for the transfer of the Player and from entering into a new agreement with Club A”;

c. The “2011 Advance Agreement (..) executed on December 6, 2011” between the Respondent, Company J and the player, as a result of the 2011 agreement, provided for Company J to receive EUR 10,000,000 from the Respondent as loan “without interest and guarantees”, clearly as “an advance or payment on account of the EUR 40 million” under the 2011 agreement;

d. The “2013 Termination Agreement”, concluded on 3 June 2013 between the Respondent, the player, Company J and the father of the player as representative of the player, which terminated the 2011 agreement;

e. The “2013 Acknowledgement Agreement”, concluded between the Respondent and Company J, acknowledged the fact that the Respondent had breached the 2011 agreement and had therefore to pay EUR 40,000,000 as penalty to Company J;

f. The “2013 Employment Agreement”, concluded on 3 June 2013 between the Respondent, the player and his father as his representative, provided, inter alia, for a new “payment of EUR 8.5 million” to be made to the player on 15 September 2013 “for accepting the transfer of his federative rights to Club C” and “increased the guaranteed salary of the player from EUR 36,125,000 (..) to EUR 45,900,000 within the following 5 years (..).” The document also “provided a penalty clause of EUR 190 million in the event that the Player decided to be transferred to another club during the 2013 Employment Agreement. Consequently, Club C knew that it was acquiring a bargain.”;

g. The “2013 Image Right Agreement”, concluded on 3 June 2013 between the Respondent, Company K and the father of the player, had the purpose of using the “Player’s image right” and provided “for a payment to Company K of EUR 1,5 million for accepting the transfer of the Player’s image right to Club C”. Such payment was “in reality a payment for the transfer of the Player himself to Club C” and was “some sort of “bonus” for inducing the Player to be transferred to Club C”;

h. The “2013 Representation and Management Agreement”, concluded on 3 June 2013 between the Respondent, Company J and the player to reward the father of the player “for procuring the execution of the 2013 Employment Agreement and the 2013 Image Rights Agreement”, provided for the latter to receive 5% “of any and all amounts (..) to be paid to the Player and/or Company K (..) at least EUR 2,795,000”;

i. The “2013 Scouting Agreement”, concluded on 30 July 2013 between the Respondent and Company J with the purpose of providing “services of scouting and monitoring of football players of Club A and other Clubs of Country B” by Company J for the sum of EUR 2,000,000 during five years was in reality “subject to PLAYER E being a player of Club C”;

j. The “2013 Agency Agreement”, concluded on 30 July 2013 between the Respondent and the company “to promote advertising agreements between Companies of Country B and Player E and Club C” during five years “provided (..) that Player E remains with Club C” for the total amount of EUR 4,000,000. This “Agreement cannot be understood as anything other than as part of the remuneration of Company J for the transfer of the player”;

k. The “Collaboration Agreement” concluded on 1 July 2013 between “Club C” and Company L for the payment of EUR 2,500,000 to the latter which is “a non-profit foundation controlled” by the player.

65. The Claimant elucidated once again that “all the amounts identified (..) have been described by the Criminal Court Proceeding in Country D (..) as part of the 'acquisition costs' [cf. point I.21 above] and, therefore, are to be understood as the price paid for the transfer of Player E. to Club C”. The Respondent had “recognized all the amounts above as being part of the Player’s price in a presentation posted on its website”.

66. Equally, the Claimant contested the Respondent’s allegation that art. 4.2 of the transfer agreement concerned the obligation to pay 15% of the transfer fee to the player in accordance with Law of Country D, arguing inter alia the inapplicability of such law to the present case.

67. Subsequently, the Claimant was eager to emphasize that the actions of the defendants had taken place within the protected period and accused the Respondent of having made a false declaration to TMS compliance.

68. Additionally, the Claimant held that according to one of the Respondent’s officials, the player had been transferred for a price below his market value and recalled that the Club of Country D, Club T would have paid EUR 100,000,000 for the player.

69. Finally, the Claimant contested the Respondent’s allegation that the latter club would have suffered a damage for having to sign the player in 2013 instead of 2014 and pointed out that the player’s transfer took place as a result of the Respondent’s own needs, i.e. to “replace the footballer Player U, who was injured at that time”.

70. Lastly and with regard to the additional payment requested from the Respondent, the Claimant explained that the Respondent had wrongfully “deposited the amount claimed in a notary public in Country D until the ongoing criminal and civil litigations are resolved” although the Respondent’s “obligation” under the statement was of an “irrevocable nature and its payment cannot be subject to any ongoing litigation”. Hence the Claimant deemed being entitled to claim from the Respondent the payment of the additional amount of EUR 2,000,000, plus 8% interest p.a. as of 30 December 2015.

71. As to its claim for compensation for the Respondent’s alleged breach of clause 8 of the transfer agreement (cf. point I.6 above), the Claimant requested from the Respondent and from the player the payment of EUR 50,000 each, plus 8% interest p.a. as “from the date of the first publication of the information” leaked to the press. The Claimant allegedly calculated the relevant compensation on the basis of Swiss literature.

72. On top of that, the Claimant requested the payment of “any and all applicable administrative duties on any compensation in accordance with clause 3.4. of the Transfer Agreement”.

73. By means of unsolicited correspondence dated 15 April 2016 and 24 May 2016, the Claimant provided FIFA with “newly discovered evidence” in the context of one of the criminal proceedings pending in Country D. According to the Claimant, such evidence confirmed that “Club C contacted and negotiated with the Player and his entourage without Club A’s knowledge and consent”; “Club A knew nothing about the 2011 and 2013 concealed agreements”; “the secret agreements are a charade in order to secure the Player’s transfer to Club C”; “the EUR 10 million under the 2011 Advance Agreement is not a loan, but an advance under the 2011 Free Agent Agreement”; “Club C anticipated the transfer (..) to 2013 for Sports-Related Reasons”; “the player was transferred to Club C in May 2013 below his market value”; “the Transfer Agreement contains obligations for all the Defendants, including the player” and “the friendly match agreements and the cooperation agreement were not part of the transfer price”.

74. In its final statement of 22 July 2016, the Respondent contested the admissibility of all new statements of the Claimant and rejected all allegations included in the relevant submissions.

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 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. Subsequently, with regard to his competence, the Single Judge referred to art. 3 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (editions 2014 and 2015), he would in principle be competent to deal with the matter at stake, which concerns a contractual dispute between two football clubs affiliated to two different associations.

3. The Single Judge, however, acknowledged that the Respondent had contested the admissibility of the claim of the Claimant in view of the legal principle of litis pendens arguing that several proceedings, involving the same parties, on the same grounds and with the same request, were already pending in Country B and Country D in connection with the transfer of the player.

4. In this respect, the Single Judge deemed it appropriate to briefly recall that, on the basis of the principle of litis pendens, a decision-making body is not in a position to deal with the substance of a case if the same matter, involving the same parties, has already brought before and is still pending with another decision-making body.

5. With the aforementioned consideration in mind, the Single Judge turned his attention to the fact that, in accordance with the information on file and the relevant documentation provided by the parties, the proceedings mentioned by the Respondent appear to be of a purely tax and criminal nature, whereas the claim lodged by the Claimant in front of FIFA – or rather the part of it which falls under the scope of art. 22 lit. f) of the Regulations (editions 2014 and 2015) – mainly revolves around the question of whether the Respondent breached the transfer agreement concluded between the parties and eventually also the FIFA Regulations and certain provisions of Swiss law.

6. In view of the foregoing, the Single Judge concluded that the present proceedings and the ones pending in Country B and Country D do not appear to deal with the same matter, as the latter seem to be related to tax and criminal issues, while the present ones – in line with art. 22 lit. f) of the Regulations – are rather related to an alleged breach of the transfer agreement concluded between the parties. Thus, the Single Judge rejected the Respondent’s objection to the admissibility of the Claimant’s claim based on the principle of litis pendens.

7. In continuation, the Single Judge remarked that the Respondent had also contested the admissibility of the claim of the Claimant alleging its prescription.

8. At this point, the Single Judge deemed it appropriate to refer to art. 25 par. 5 of the FIFA Regulations on the Status and Transfer of Players (editions 2014 and 2015), according to which, inter alia, the Players’ Status Committee and its Single Judge shall not hear any case subject to the said Regulations if more than two years have elapsed since the event giving rise to the dispute.

9. In this respect, the Single Judge considered that the event giving rise to the present dispute was, in fact, the conclusion of the transfer agreement between inter alia the Claimant and the Respondent on 31 May 2013. Hence, taking into account the fact that the claim of the Claimant was lodged on 27 May 2015 and considering that the transfer agreement was concluded on 31 May 2013, the Single Judge established that the claim of the Claimant had been lodged within the two years deadline provided for in the Regulations and therefore is not time-barred.

10. In view of the aforementioned, the Single Judge concluded that he is competent to hear the claim lodged by the Claimant against the Respondent and to decide on the matter at stake.

11. Having established the aforementioned, the Single Judge analysed which edition of the Regulations should be applicable as to the substance of the matter. In this respect, the Single Judge confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2014 and 2015), and considering that the present claim was lodged on 27 May 2015, the 2015 edition of said regulations is applicable to the matter at hand as to the substance.

12. His competence and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging the facts of the case as well as the arguments and the documentation submitted by the parties. In this respect, the Single Judge was eager to point out that, in the following considerations, he will only refer to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

13. In doing so, the Single Judge acknowledged that, on 31 May 2013, the Claimant, the Respondent, the player, the father of the player and Company G signed a transfer agreement related to the transfer of the player from the Claimant to the Respondent, which provided for the amount of EUR 17,100,000 as transfer fee to be paid on 7 June 2013 by the Respondent to the Claimant. Furthermore, the Single Judge acknowledged that, in accordance with the transfer agreement, the Claimant and the Respondent were not allowed to pay any amounts to the player or to Company G in connection with his transfer.

14. In continuation, the Single Judge remarked that, on 31 May 2013, the Respondent undertook to pay to the Claimant the amount of EUR 2,000,000 in case the player was nominated among one of the three finalists of the Award S during the validity of his employment contract with the Respondent, payable one month after the relevant nomination.

15. Equally, the Single Judge took note of the Claimant’s allegations, according to which the Respondent and the player, among others, would have colluded behind its back in order to obtain a transfer of the player to the Respondent in accordance with terms favourable to the latter. Equally, the Single Judge took note of the Claimant’s allegations according to which the Respondent would have paid to the player and to his family – also via several companies – the total amount of EUR 61,295,000, breaching the terms of the transfer agreement. In the same context, the Single Judge observed that the Claimant considered the behaviour of the Respondent as being fraudulent and accused the latter of having breached not only the FIFA Regulations but also Swiss law and the UNIDROIT principles.

16. Furthermore, the Single Judge acknowledged that, in its claim to FIFA, the Claimant had requested from the Respondent the payment of EUR 61,295,000 as compensation for having breached the transfer agreement and/or for its fraudulent behavior and of EUR 50,000 for having breached the confidentiality clause included in the Transfer agreement. Similarly, the Single Judge remarked that the Claimant had requested from the Respondent the payment of EUR 2,000,000 in accordance with the statement. In addition, the Single Judge observed that from the Claimant’s point of view, the Respondent should be sanctioned in accordance with the Regulations and the Disciplinary Code.

17. Finally, the Single Judge acknowledged that, for its part, the Respondent, although recognising the existence of several agreements related to the transfer of the player from the Claimant, had contested the claim of the latter inter alia arguing that the payments made in connection with such agreements could not be considered as part of the transfer fee paid for the player.

18. Bearing in mind all the aforementioned, the Single Judge noted that, in accordance with the documentation provided and the arguments put forth by both parties, it was undisputed that the amount of EUR 17,100,000 did not correspond to 100% of the sum spent by the Respondent in the context of the transfer of the player from the Claimant to the Respondent, as established in clause 3.3 of the transfer agreement. Furthermore, the Single Judge also noted from the documentation on file as well as from the submissions of the parties that the player and Company G – seemingly in disagreement with clauses 4.2 and 5 of the transfer transfer agreement – appear to have received from the Respondent some payments in connection with his transfer to the latter, which the Respondent however claims not to correspond to the transfer fee.

19. Notwithstanding the foregoing, and without further developing the analysis of an alleged breach of the aforementioned contractual clauses by the Respondent, the Single Judge deemed it appropriate to point out that the transfer agreement did not provide for any consequences for the party at fault in case of an eventual breach of any of its clauses, let alone of clauses 3.3, 4.2. or 5, in particular.

20. In the same context, the Single Judge further referred to art. 12 par. 3 of the Procedural Rules, in accordance with which the burden of proof has to be borne by the party claiming a right on the basis of an alleged fact and pointed out that no evidence had been provided by the Claimant in support of the allegation that it would have incurred in any type of damage in connection with the additional payments made by the Respondent.

21. Equally, the Single Judge reasoned that such additional payments could not be considered as a quantification of a possible damage suffered by the Claimant in respect to the transfer of the player and recalled that the Claimant had voluntarily negotiated and concluded the transfer agreement and had, therefore, accepted all of its terms and conditions, including the financial ones. In this sense, the Single Judge emphasised that the Claimant had agreed upon receiving the total amount of EUR 17,100,000 as transfer fee for the player.

22. Hence, in view of all the aforementioned and, in particular, taking into account the lack of a provision in the transfer agreement establishing any financial or other consequences in case of a possible breach of one of its provisions by either party as well as considering that the Claimant had failed to demonstrate that it would have in fact suffered a damage in the amount of EUR 61,295,000 in connection with the transfer of the player to the Respondent, the Single Judge came to the conclusion that the claim of the Claimant for compensation in the amount of EUR 61,295,000 had to be rejected, due to its lack of contractual, legal or evidentiary basis.

23. In continuation and as to the second part of the Claimant’s claim, i.e. its request for the payment of EUR 50,000 as compensation for having allegedly breached the confidentiality clause included in the contract, the Single Judge recalled once again that the transfer agreement did not include a provision establishing any financial or other consequences in case of a possible breach of one of its clauses, let alone of clause 8. Hence, the Single Judge determined that also this part of the Claimant’s claim had to be rejected, due to its lack of contractual, legal or evidentiary basis.

24. Having established the aforementioned, the Single Judge turned his attention to the third part of the Claimant’s claim, i.e. its request concerning the payment of EUR 2,000,000 in accordance with the statement of 31 May 2013, as a consequence of the player having become one of the finalist of the 2015 Award S, and recalled that such request of the Claimant had not been specifically contested by the Respondent.

25. Therefore, considering the aforementioned as well as taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, bearing in mind that the player was indeed one of the finalists of the 2015 Award S and that it had remained undisputed that the Respondent failed to pay to the Claimant the sum of EUR 2,000,000 in accordance with the statement, the Single Judge resolved that the Respondent, in order to fulfil its obligations established in the document in question, has to pay to the Claimant the outstanding amount of EUR 2,000,000.

26. Additionally and with regard to the Claimant’s request for interest in the amount of 8% p.a. to be applied on the sum of EUR 2,000,000, the Single Judge recalled that, according to the statement, the amount of EUR 2,000,000 was to be paid to the Claimant one month after the nomination of the player. As to that and in accordance with the information at his disposal, the Single Judge remarked that the player was nominated finalist of the 2015 Award S on 30 November 2015. Finally, the Single Judge pointed out that no provision related to the payment of a specific amount of interest in case of late payment by the Respondent was included in the statement.

27. As a result of the aforementioned and in accordance with his well-established jurisprudence, the Single Judge decided that interest in the amount of 5% p.a. were to be applied on the outstanding amount of EUR 2,000,000 as of the day after the expiry of the one month deadline included in the statement had elapsed, i.e. as of 31 December 2015.

28. Finally and as to the requests for sanctions against the Respondent, the Single Judge considered that such requests fall outside the scope of the present contractual dispute between clubs belonging to different associations (cf. art. 11 lit. f) of the Regulations) and, as a result, they cannot be assessed by the Single Judge of the Players’ Status Committee.

29. In view of all the aforementioned, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the total amount of EUR 2,000,000 plus 5% interest p.a. as of 31 December 2015.

30. 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 and 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 and are normally to be paid by the unsuccessful party.

31. In this respect, the Single Judge reiterated that the claim of the Claimant is only partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Claimant and the Respondent have to both bear the costs of the current proceedings in front of FIFA.

32. 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 above CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

33. In conclusion and in view of the numerous submissions and of the considerable amount of documentation that had to be analysed in the present matter as well as considering that a number of factual complexities had to be addressed, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000.

34. Consequently, the amount of CHF 18,000 has to be paid by the Respondent and the amount of CHF 7,000 has to be paid by the Claimant 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 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 the present decision, the total amount of EUR 2,000,000, plus 5% interest p.a. on said amount as from 31 December 2015 until the date of effective payment.

4. If the aforementioned sum, plus interest as established above, 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.

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

6. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by both parties, within 30 days as from the date of notification of the present decision, as follows:

6.1. The amount of CHF 18,000 has to be paid by the Claimant, Club A. Considering that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the latter has to pay the remaining amount of CHF 13,000.

6.2. The amount of CHF 7,000 has to be paid by the Respondent, Club C.

6.3. The aforementioned amounts of CHF 13,000 and of CHF 7,000 are 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

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