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 16 March 2016
Decision of the Single Judge
of the Players’ Status Committee
passed in Zurich, Switzerland, on 16 March 2016,
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. In August 2007, Club A from country B (hereinafter: the Claimant) and Club C from country D (hereinafter: the Respondent), concluded an agreement (hereinafter: the transfer agreement) for the transfer of Player E (hereinafter: the player) from the Claimant to the Respondent.
2. Clause 1 of the transfer agreement states that “[the Claimant] declares being the unique and exclusive owner of the totality of the federative rights regarding the transfer of the professional player (…)” (free translation).
3. Moreover, clause 2 of the transfer agreement provides that “[i]n full disposition of the player’s federative rights, [the Claimant] sells, yields and transfers definitively 70% (seventy percent) of the above-mentioned rights” (free translation).
4. In continuation, clause 3 of the transfer agreement stipulates that “[t]he price for the definitive transfer of the totality of the rights mentioned in clause 1 and 2 is set in the amount of EUR 2,850,000 (…) including any other charge. [The Respondent] undertakes to pay [the Claimant] the amount of EUR 350,000.00 (…) for each sporting season that the player effectively plays for [the Respondent]. The aforementioned amount will not be recognised in case the player is transferred to another company” (free translation).
5. Clause 4 further specifies the following:
“for the 2007/2008 sporting season, the amount of EUR 2,850,000.00 will be paid:
1. EUR 225,000.00 on the date of signature of the present contract.
2. EUR 1,200,000.00 on 30 September 2007.
3. EUR 1,425,000.00 on 30 June 2008.
With regards to the amount of EUR 350,000.00 for each sporting season that [the player] will play for [the Respondent], the amount will be recognised within 30 June of each sporting season that the player played with [the Respondent]” (free translation).
5. On 3 June 2014, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the amount of EUR 3,350,000.
6. In its claim, the Claimant alleges that the Respondent failed to pay the amount of EUR 350,000 due in accordance with clauses 3 and 4 of the transfer agreement for the last season that the player played with the Respondent. In addition, the
Player E
Claimant explains that it only transferred 70% of the player’s economic rights and that, therefore, it is entitled to receive 30% of the amount of EUR 12,000,000, i.e. EUR 3,000,000, corresponding to the transfer compensation paid by Club F to the Respondent to transfer the player in 2013.
7. In its reply, the Respondent firstly emphasises that the Claimant’ claim is time-barred.
8. In continuation, the Respondent contends that the federative rights are indivisible and that therefore, the Claimant’ claim is groundless.
9. After the closure of the investigation, the Claimant submitted additional comments, stressing that its claim is not time-barred since the event giving rise to the dispute occurred in 2013. In this respect, the Claimant insists that the Respondent received the last instalment of the transfer paid by Club F in 2013 and that therefore its obligation to pay its due percentage arose at that moment.
10. In addition, the Claimant outlines that the transfer agreements contains a typo, mistakenly referring to 70% of the federative rights instead of 70% of the economic rights.
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 whether he was competent to deal with the matter at hand. In this respect, he referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015) as well as to the fact that the present matter was submitted to FIFA on 3 June 2014. Therefore, the Single Judge concluded that the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 2015) and, on the other hand, to the fact that the claim was lodged in front of FIFA on 3 June
Player E
2014. In view of the foregoing, the Single Judge concluded that the 2012 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.
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 would, in principle, be competent to deal with the present matter since it concerned a dispute between two clubs affiliated to two different associations.
4. The Single Judge further observed that the Claimant submitted its final comments after notification of the closure of the investigation of the matter at hand. As a result, in line with art. 9 par. 4 of the Procedural Rules as well as the Committee’s constant jurisprudence in this regard, he decided not to take into account the aforementioned submission and established that, in accordance with art. 9 par. 3 of the Procedural Rules, he shall take a decision upon the basis of those documents on file that were provided prior to the closure of the investigation-phase.
5. The competence of the Single Judge and the applicable regulations having been established, the Single Judge started by acknowledging that the Claimant and the Respondent concluded a transfer agreement in August 2007, for the transfer of the player from the Claimant to the Respondent. In this respect, the Single observed that in accordance with clause 2 of the transfer agreement, “[i]n full disposition of the player’s federative rights, [the Claimant] sells, yields and transfers definitively 70% (seventy percent) of the above-mentioned rights”. Equally, the Single Judge took note that said transfer agreement stipulated in its clauses 3 and 4 that “[the Respondent] undertakes to pay [the Claimant] the amount of EUR 350,000.00 (…) for each sporting season that the player effectively plays for [the Respondent] and that “the amount will be recognised within 30 June of each sporting season that the player played with [the Respondent]”.
6. In continuation, the Single Judge took note that on 3 June 2014, the Claimant lodged the present complaint at FIFA alleging that the Respondent had failed to pay the amount of EUR 350,000 for the last season that the player played with the Respondent, as well as EUR 3,000,000 corresponding to 30% of the transfer compensation allegedly paid by Club F to the Respondent for the transfer of the player in 2013.
Player E
7. Having stated the foregoing, the Single Judge deemed of utmost importance to point out that according to the information at his disposal, the player was transferred from the Respondent to Club F in July 2010. As a consequence, the Single Judge outlined that since the player played his last season with the Respondent during the 2009-10 season, the Claimant’s right to receive the amount of EUR 350,000 for said season in accordance with clause 3 and 4 of the transfer agreement arose on 30 June 2010.
8. At this stage, the Single Judge emphasised that, in accordance with art. 25 par. 5 of the Regulations, the decision-making bodies of FIFA shall not hear any case subject to the Regulations if more than two years have elapsed since the event giving rise to the dispute.
9. Having the latter principle in mind, the Single Judge decided that the Claimant’s claim related to the payment of the amount of EUR 350,000 in accordance with clauses 3 and 4 of the transfer agreement must be declared barred by the statute of limitations in application of art. 25 par. 5 of the Regulations, since the present claim was lodged on 3 June 2014 only, thus outside the time limit of two years, which elapsed in July 2012.
10. Having established the above, the Single Judge turned his attention to the second part of the Claimant’s claim, i.e. the percentage claimed on the transfer compensation allegedly paid by Club F to the Respondent.
11. In this respect, after referring to art. 12 par. 3 of the Procedural Rules according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof, the Single Judge emphasised that the Claimant did not submit any element evidencing that the transfer compensation payable by Club F to the Respondent, if any, was to be paid in several instalments, the last one being due in 2013. Consequently, and in view of the Claimant’s failure to satisfactorily carry the burden of proof regarding its assertion, the Single Judge had no other option but to conclude that the transfer compensation, if any, was fully paid simultaneously with the transfer, i.e. in July 2010, and that, therefore, the right allegedly claimed by the Claimant would have arisen on that date.
12. In light of the foregoing, the Single Judge referred again to art. 25 par. 5 of the Regulations, and concluded that the second part of the Claimant’s claim must also be declared barred by the statute of limitations in application of the aforementioned provision of the Regulations, since it was also lodged on 3 June 2014 only, thus outside the time limit of two years.
Player E
13. Taking into account all the foregoing, the Single Judge decided that the Claimant’s claim is inadmissible.
14. 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. It is further stipulated that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.
15. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 3,500,000 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules).
16. As a result, taking into account the particularities of the present matter as well as that the Claimant was the unsuccessful party in the present proceedings, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000, which shall be borne by the Claimant.
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 20,000 are to be paid by the Claimant to FIFA, CHF 5,000 of which have already been paid as advance of costs at the start of the present proceedings. Consequently, the additional amount of CHF 15,000 is to be paid by the Claimant to FIFA within 30 days of notification of the present decision, to the following bank account with reference to case no.:
Player E
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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Note relating to the motivated decision (legal remedy):
According to article 67 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:
Marco Villiger
Deputy Secretary General
Encl. CAS Directives