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 26 April 2016

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 26 April 2016,

by

Mr Geoff Thompson (England)

Single Judge of the Players’ Status Committee,

on the claim presented by the club

A, country U

represented by Mr xxxxx

as “Claimant”

against the club

B, country I

represented by Mr xxxxxx

as “Respondent”

regarding a contractual dispute between the parties

and relating to the player D.

I. Facts of the case

1. On 20 June 2008, the club from U, A (hereinafter: “the Claimant”), and the club from I, B (hereinafter: “the Respondent”), concluded a transfer contract (hereinafter: “the contract”) for the transfer of the player D (hereinafter: “the player”) from the Claimant to the Respondent.

2. Pursuant to article 2 of the contract, the Respondent had to pay to the Claimant for the transfer of the player the amount of EUR 1,000,000.

3. Article 6 of the contract established that: “B [i.e. the Respondent] compromised to recognise to A [i.e. the Claimant] an additional amount of EUR 500,000 within a maximum deadline of 30 days since the player would have played in 12 participations for at least 45 minutes in official matches with B´s first team or other European 1st or 2nd division (Serie A or B) as long as the player would be registered with B [i.e. the Respondent]”.

4. In this respect, the version of the article 6 of the contract said: “B [i.e. the Respondent] si impegna sin da ora a riconoscere a A [i.e. the Claimant] una ulteriore somma pari a Euro 500.000 (cinquecentomila) entro e non oltre 30 giorni dai verificarsi dell´ evento se il D [i.e. the player] disputerà n. 12 presenze di almeno 45 minuti in gare ufficiali con la prima squadra del B [i.e. the Respondent] o di altra società di serie A o B Europea fino a quando il D [i.e. the player] sarà tesserato con il B [i.e. the Respondent]”.

5. Equally, the Spanish version of the article 6 of the contract said: “B [i.e. the Respondent] se compromete desde ya a reconocer a A [i.e. the Claimant] una ulterior suma equivalente a 500.000 Euros (quinientos mil) dentro y no más allá de los 30 días desde el momento en que D [i.e. the player] tendrá 12 participaciones de por lo menos 45 minutos en partidos oficiales con el primer equipo del B [i.e. the Respondent] o de otra sociedad de I o II división (Serie A o B) Europea hasta cuando el D [i.e. the player] será fichado por el B [i.e. the Respondent]”.

6. On 20 February 2009, the Claimant and the Respondent concluded an addendum to the contract, by means of which they established a new payment plan of the outstanding transfer compensation of EUR 900,000. In this regard, the parties decided that such amount should be paid in six instalments, the first one on 28 February 2009 and the last one on 30 October 2009.

7. On 23 October 2013, the Claimant lodged a complaint with FIFA against the Respondent requesting from the latter the payment of EUR 500,000 (cf. article 6 of the contract), plus 5% interest p.a. over such amount as from 31 April 2012 as well as procedural costs.

8. On account of the above, the Claimant provided a new version of the contract, which was not signed by the Respondent (hereinafter: “the draft”) and differed only in the wording of its article 6, which stated that the Respondent shall pay the Claimant an additional amount of EUR 500,000 if the player would play “a minimum of 45 minutes in 12 official matches with the first team of B [i.e. the Respondent] or other European´s A or B´s category”.

9. The Claimant explained that the conditions established in the article 6 of the contract were fulfilled on 31 March 2012 on the occasion of the match, P vs T. The Claimant alleged that the Respondent should have paid it the additional amount of EUR 500,000 on 31 April 2012, i.e. 30 days after the fulfilment of the contractual condition.

10. In this respect, the Claimant summarized the player´s career as follows:

 in the sporting season 2008/2009 and 2009/2010 the player has played one match with the Respondent;

 in the sporting season 2011/2012, the player has played 16 matches of at least 45 minutes with the club, T from “Lega Serie B” where the player was on loan;

 in the sporting season 2012/2013, the player has played 36 official matches for at least 45 minutes with T where the player was on loan, being the relevant contractual condition fulfilled twice;

 in the sporting season 2013/2014 the player has played 33 official matches for at least 45 minutes with T where the player was on loan.

11. In its reply to the claim, the Respondent argued that it did not owe any additional amount to the Claimant since the conditions of article 6 of the contract had not been fulfilled. Moreover, the Respondent added that the application of article 6 of the contract had expired.

12. In this regards, the Respondent stated that the draft presented by the Claimant should be disregarded as it was not signed by the Respondent since it was only a draft during the negotiations and was therefore not binding upon between the parties. The Respondent explained that article 6 of the contract stated that the Respondent should pay to the Claimant the sum of EUR 500,000 in case the following conditions would be met cumulatively: “(i) the player participates in at least 12 games; (ii) each of such appearance must be of no less than 45 minutes on the pitch; (iii) the match must be official; (iv) the player must make the relevant appearances with B [i.e. the Respondent], or with another Italian Serie A or B club, or another European club and (v) the player must be registered with B”.

13. The Respondent recognised having signed on 20 June 2008 an employment contract with the player valid from 1st July 2008 until 30 June 2011 (hereinafter: “the employment contract”).

14. Furthermore, the Respondent argued that the player allegedly played for their first team only once for 17 minutes. Since 28 August 2011, the player was transferred from the Respondent and has not been registered again for the.

15. In addition, the Respondent argued that the alleged matches played by the player with T were played long after the end of the employment contract, i.e. 30 June 2011. If the position of the Claimant would be accepted this would mean that the Respondent would be bound to this obligation sine die, without limitation of time and even beyond the end of the employment contract against fundamental legal principles.

16. The Respondent explained that the aim of article 6 of the contract or of any other equivalent so called “bonus clauses” is to remunerate additionally a party once the player has been so valuable for his new club. The Respondent was of the opinion that it would be a mistake to suggest that the bonus would be applicable in case the player would play for another club. The Respondent deemed that this situation would result in remunerating the Claimant for benefits that the Respondent did not receive.

17. The Claimant presented its reaction and rejected the contracts in both Italian and Spanish languages provided by the Respondent alleging that they are not valid and falsified based on the following arguments:

 they never saw those contracts before;

 the only difference between the contracts and the draft is the article 6;

 the date of the contract in the Italian version is handwritten meanwhile the rest of its content is typed;

 the Spanish version does not contain any date;

 the draft and the amendment were stamped by the Claimant in each page. However, the contract is only stamped in the last page.

18. The Claimant contested the Spanish translation of article 6 of the contract presented by the Respondent in particular when it refers to “hasta cuando el D [i.e. the player] será fichado por el B [i.e. the Respondent]” and the interpretation of the article 6 of the contracts presented by the Respondent. The Claimant stated that the conditions stipulated in the said article were fulfilled and therefore it was entitled to the additional compensation of EUR 500,000 from the Respondent.

19. The Claimant interpreted article 6 of the contract in the sense that the Respondent was still bound to such clause as long as the player would be contractually linked with the Respondent whenever he played 12 matches as stipulated in article 6 of the contract. The Claimant alleged that the Respondent and the player were linked by signing subsequent employment contracts for 7 years (since 20 June 2008 until 10 August 2015), date in which the player was definitively transferred to the club, N (hereinafter: “N”). During the employment relationship, the player was loaned to T (sportive seasons 2011/2012; 2012/2013; and 2013/2014) and to N (sportive season 2014/2015).

20. The Claimant further argued that article 6 of the contract did not limit its application to the time that the player was effectively playing for the Respondent and thus the required conditions were fulfilled during the employment relationship between the player and the Respondent was in force.

21. The Respondent presented its final position and alleged that the only valid contract is the one duly signed by both parties. The allegations of falsification made by the Claimant were absolutely groundless.

22. The Respondent argued that the term “tesserato” means exactly “registered”. The contract was drafted in Italian and Spanish and since the parties did not establish a prevalent version both of them revealed the common intention of the parties.

23. The Respondent further argued that article 6 of the contract must be interpreted in the sense that the payment of the bonus is due only if the player is registered with the Respondent, whereby the expression “registered” excludes the periods of temporary transfer. Therefore, since the player left the Respondent on 28 August 2011 and was not registered with it anymore, the Claimant was not entitled to the additional amount of EUR 500,000.

24. The Respondent added that the employment contract between them and the player was no longer in force when the player was transferred on loan to T. In other words, when the player was registered with T, the only contract in force was the one entered between T and the player. This means that, during the loan period there was no ongoing contractual relationship between the Respondent and the player.

25. Therefore, the Respondent rejected once again the Claimant’s claim in its entirety.

II. Considerations of the Single Judge of the Player’s Status Committee

1. First of all, the Single Judge of the Player’s Status Committee (hereinafter: “the Single Judge”) analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 23 October 2013. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter: “the Procedural Rules”) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, the Single Judge concluded that in accordance with art. 26 par. 1 and par. 2 of the 2015 edition of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 23 October 2013, the 2012 edition of said regulations (hereinafter: ”the Regulations”) is applicable to the matter at hand as to the substance.

3. Furthermore, the Single Judge confirmed that, based on art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 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, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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 doing so and to begin with, the Single Judge took note that the parties had antagonistic positions with regard to which agreement (i.e. the contract or the draft) was the basis of the present dispute. In this respect, the Single Judge duly took note that the Claimant argued that the draft was the binding document and alleged never having seen the contract, whereas the Respondent deemed the contract was the relevant document between the parties specifying that the draft was not signed by both parties and allegedly only used during the parties’ negotiations.

6. In light of the aforementioned, considering that the Respondent invoked that the draft was only a basis for the contract negotiations and that the contract was duly signed by both parties, whereas the draft had not been signed by the Respondent, the Single Judge deemed that the contract was the agreement at the basis of the present dispute (written in Italian and Spanish language), which regulated the contractual relationship between the Claimant and the Respondent in connection with the transfer of the player.

7. For the sake of good order, the Single Judge reiterated that the contract was written in two languages, i.e. Italian and Spanish without any indication to which of the two versions shall prevail over the other one.

8. In continuation, the Single Judge observed that the Claimant maintained that it was entitled to the amount of EUR 500,000 in accordance with article 6 of the contract, since the player, on 31 March 2012, allegedly played his twelfth match for the Serie B club T, for at least 45 minutes.

9. Notwithstanding the above, the Single Judge noted that the Respondent disputed the Respondent’s entitlement to the amount of EUR 500,000 arguing that the player was only registered with the Respondent in one match and, therefore, did allegedly not fulfil the conditions as set forth in art. 6 of the contract.

10. At this stage, the Single Judge was eager to emphasise that the player’s participation, for at least 45 minutes, in at least twelve matches until 31 March 2012 remained undisputed by the parties, however, the Respondent invoked that the player was only registered with it until 28 August 2011 being on loan and transferred to other clubs as from the aforementioned date.

11. In this context, the Single Judge referred to the content of the player´s passport issued on 20 August 2014 by the Football Federation (at disposal in the FIFA Transfer Matching System [TMS]) and confirmed that the player was loaned from the Respondent to T on three occasions, as follows:

 from 29 August 2011 until 30 June 2012;

 from 22 August 2012 until 30 June 2013 and

 from 2 September 2013 until 30 June 2014.

12. Subsequently, the Single Judge acknowledged that according to TMS the player was transferred internationally from the Respondent to the club N, first on loan on 21 August 2014 and one year after, i.e. on 10 August 2015, on a definitive basis.

13. In conclusion, the Single Judge emphasised that according to the documents registered in TMS the player was registered with the Respondent from 9 September 2008 until 7 August 2015.

14. Having duly examined the argumentation and documentation put forward by both parties as well as the relevant information contained in TMS, the Single Judge emphasised that the will of the parties concerned with regards to clause 6 of the contract has to be interpreted.

15. On account of the above and first of all, the Single Judge turned his attention to the wording of the contract and recalled the Respondent’s opinion that the condition in accordance with clause 6 of the contract was that the player was registered/signed (i.e. “tesserato/fichado”) with the Respondent.

16. Moreover, the Single Judge was eager to emphasise that when a player is registered with a club on a definitive basis, the transfer right of such player remain exclusively with such club as long as a valid employment contract is in force. In other words, if a player is transferred on a temporary basis (i.e. loan) the player is still bounded to the club which owns the relevant transfer rights and with which he has still a valid employment contract.

17. In view of the aforementioned, the Single Judge concluded that the player was still registered with the Respondent during the timeframe in which he was loaned to T, taking into account that the latter was still the holder of the original transfer rights over the player based on their employment relationship.

18. Equally, the Single Judge turned his attention to the structure of the contract and pointed out that, by adding the condition in clause, that the player has to play twelve games either for B or any other European club playing in an European first or second league, the parties implied that such clause shall be valid as long as the transfer rights of the player are in the Respondent’s possession, even if the player is on loan and playing for another club. Particularly, the Single Judge remarked that if the will of the parties was to take into account only the matches that the player would play with the Respondent and not with other clubs, the parties would not have included the option that the player may also play for another club in clause 6 of the contract.

19. In view of all the above, the Single Judge concluded that the Respondent´s argument that the expression “registered” or “fichado” or “tesserato” meant to exclude the periods of temporary transfer of the player to other European 1st or 2nd division clubs should be rejected.

20. At this stage, the Single Judge concluded that the player played 12 official matches for at least 45 minutes for a 2nd division European Club (i.e. T) while still being registered with the Respondent.

21. Therefore, The Single Judge underlined that 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 Claimant is entitled to receive from the Respondent the additional amount of EUR 500,000 in accordance with article 6 of the contract.

22. Having established the above-mentioned, the Single Judge turned his attention to the Claimant´s request for interest at a rate of 5% p.a. over the amount of EUR 500,000 as from 31 April 2012. In this respect, the Single Judge underlined that based on the article 6 of the contract the amount in dispute was due 30 days after the relevant conditions were fulfilled. On account of the above, the Single Judge deemed that said conditions had been fulfilled 31 March 2012 setting the due date on 30 April 2012.

23. Therefore, the Single Judge decided to partially accept the Claimant’s claim and held that the Respondent has to pay to the Claimant the amount of EUR 500,000 plus interest at a rate of 5% p.a. as from 1 May 2012 until the date of effective payment.

24. Finally, 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).

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. On that basis, the amount in dispute to be taken into consideration in the present proceedings is EUR 500,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

26. In conclusion, the Single Judge determined, in view of the specificity of the case at hand, the costs of the current proceedings in the amount of CHF 20,000 shall be borne by the Respondent.

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

1. The claim of the Claimant, A, is partially accepted.

2. The Respondent, B, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 500,000, plus an interest at a rate of 5% per year on the said amount from 1 May 2012 until the date of effective payment.

3. If the aforementioned amount 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 claims lodged by the Claimant are rejected.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid by the Respondent, within 30 days as from the date of notification of the present decision, as follows:

5.1 The amount of CHF 5,000 has to be paid directly to the Claimant.

5.2 The amount of CHF 15,000 has to be paid to FIFA to the following bank account with reference to case nr.:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant is directed to inform the Respondent directly and immediately of the account number to which the remittances under points 2. and 5.1 above 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 art. 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