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 23 September 2015

Decision of the

Single Judge

of the

Players’ Status Committee

passed in Zurich, Switzerland, on 23 September 2015,

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 and relating to the Player A

I. Facts of the case

1. On 26 August 2011, the club from country B, Club A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded a transfer agreement for the player, Player A (hereinafter: the player), from the Claimant to the Respondent.

2. Article 4 of the transfer agreement stipulated that in the event of a subsequent transfer of the player to a third club, the Respondent shall pay to the Claimant 10% “on the difference between one million Euro plus any of the possible variable fees paid by Club C and the final transfer fee paid by that third club and at the same agreed maturity dates” (hereinafter: the sell-on clause).

3. On 27 October 2014, the Claimant lodged a claim before FIFA against the Respondent. In particular, the Claimant requested 10% of the plus value of the subsequent transfer of the player from the Respondent to the club from country D, Club F, as well as to be provided with a copy of the transfer agreement entered into between said clubs (hereinafter: the subsequent transfer agreement), procedural costs and disciplinary actions against the Respondent.

4. In this respect, the Claimant held that it had unsuccessfully requested a copy of the subsequent transfer agreement to Club C.

5. On 5 March 2015, the Respondent rejected the Claimant’s claim by stating that “the agreement invoked is null for all legal purposes from the outset, as will be demonstrated during the proceedings”, without making any further statements.

6. On 22 May 2015, the Single Judge of the Players’ Status Committee condemned the Respondent to provide a copy of the transfer contract concluded with Club F for the player or documentary evidence indicating that no transfer compensation was payable by Club F in relation to the transfer of the player.

7. On 23 July 2015, the Respondent provided a copy of the transfer agreement concluded with Club F, dated 1 August 2014, which provided for a transfer fee in the amount of EUR 2,650,000 payable in three instalments as follows:

- EUR 900,000 for the sport season 2014/2015;

- EUR 850,000 for the sport season 2015/2016; and

- EUR 900,000 for the sport season 2016/2017.

8. On 16 August 2015, the Claimant held that, in spite of all the attempts to amicably settle the present matter, the Respondent delayed without any justification the payment of the sell-on clause over the two first instalments of the transfer fee paid by Club F to the Respondent for the transfer of the player in bath faith and that, as a result, it is of the opinion that the Respondent should pay the total sell-on clause in the amount of EUR 165,000 instead of the sell-on clause over the first two instalments only.

9. In this respect, the Claimant stated that it had suffered a damage due to the Respondent’s bad faith, evidenced by the non-payment of the sell-on clause as well as by the late remittance of the copy of the transfer agreement concluded with Club F, and that consequently, the sell-on clause over the third instalment shall also be granted in order to avoid a third proceeding and damage the Claimant’s interests.

10. In light of the above, the Claimant requested that the Respondent be condemned to pay EUR 165,000, plus 5% interest p.a. as of the date of the effective transfer of the player from the Respondent to Club F, the procedural costs and disciplinary sanctions.

11. Alternatively, the Claimant requested that the Respondent be condemned to pay the amount of EUR 56,037.30, plus 5% interest p.a. as from 1 July 2014, the amount of EUR 52,925.40, plus 5% interest p.a. as from 1 July 2015, as well as EUR 56,037.30 in relation to the third instalment on 1 July 2016, the procedural costs and disciplinary sanctions.

II. Considerations of the Single Judge of the Players’ Status Committee

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed which Procedural Rules were applicable to 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 27 October 2014, thus after 1 August 2014. Therefore, the Single Judge concluded that the 2014 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 matter at hand.

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players was 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 2015 edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged in front of FIFA on 27 October 2014. In view of the foregoing, the Single Judge concluded that the 2014 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 was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to two different associations.

4. The competence of the Single Judge and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, he emphasized 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. First of all, the Single Judge noted that the Claimant was pursuing a claim for the payment of the 10% in relation to the sell-on-clause it had agreed upon with the Respondent in the transfer agreement concluded between the parties.

6. In turn, the Single Judge noted that the Respondent’s only statement during the entire proceedings was that the transfer agreement “is null for all legal purposes from the outset, as will be demonstrated during the proceedings”. In this respect, the Single Judge referred to art. 12 par. 3 of the Procedural Rules, which stipulates that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In this context, the Single Judge observed that the Respondent had not submitted any documents which demonstrated that the transfer agreement concluded between the Claimant and the Respondent was null.

7. As a result, the Single Judge pointed out that it was undisputed that said agreement stipulated a sell-on-clause, entitling the Claimant, in case of a subsequent transfer of the player to a third club, to receive 10% “on the difference between one million Euro plus any of the possible variable fees paid” by the Respondent and the final transfer fee paid by a third club to the Respondent “at the same agreed maturity dates”.

8. In addition to that, the Single Judge noted that, on 1 August 2014, the Respondent concluded a transfer agreement with the club from country D, Club F, regarding the transfer of the player from the Respondent to Club F, for a transfer amount of EUR 2,650,000. The Single Judge noted that no specific payment dates were established in the transfer agreement concluded between the Respondent and Club F. In view of this omission, the Single Judge deemed it reasonable to consider that each instalment stipulated in such agreement is due at the beginning of each relevant season. Bearing in mind the foregoing, the Single Judge noted that the amount of EUR 1,750,000 had already fallen due. However, the Single Judge also took note that the last instalment of the relevant transfer fee, i.e. the amount of EUR 900,000, had not fallen due yet. Therefore, the Single Judge concluded that, in application of the sell-on-clause, the Claimant is, to date, only entitled to receive 10% of EUR 750,000 from the Respondent, equalling to EUR 75,000.

9. In this respect, the Single Judge ruled that the Respondent failed to provide any evidence supporting the alleged nullity of the transfer agreement or to justify the non-payment of the amounts due according to the sell-on-clause and that, thus, the Respondent had failed to respect the terms of the transfer agreement it had entered into with the Claimant on 26 August 2011.

10. The Single Judge concluded his deliberations by rejecting any further claim of the Claimant.

11. In light of all the above, the Single Judge held 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 Respondent has to fulfill its contractual obligations towards the Claimant. Therefore, the Single Judge decided to partially accept the claim of the Claimant, and held that the Respondent has to pay to the Claimant the amount of EUR 75,000 plus default interest as of 1 August 2015 until the date of effective payment.

12. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of CHF 25,000 are levied. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings (cf. art. 18 par. 1 of the Procedural Rules).

13. In respect of the above, and taking into account that the claim of the Claimant had only been partially accepted, the Single Judge concluded that both the Claimant and the Respondent have to bear a part of the costs of the current proceedings before FIFA.

14. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 165,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

15. In conclusion, and considering that the case at hand did not pose any particular factual difficulties and was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore as well as the conduct of the parties during the proceedings, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000, of which 1/5 shall be borne by the Claimant and 4/5 shall be borne by the Respondent.

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

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

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 75,000, plus 5% interest p.a. as of 1 August 2015 until the date of effective payment.

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

4. Any further claim lodged by the Claimant is rejected.

5. The final amount of costs of the proceedings in the amount of CHF 15,000 is to be paid, within 30 days as from the date of notification of the present decision as follows:

5.1 The amount of CHF 12,000 by the Respondent to FIFA to the following bank account with reference to case nr. XXXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

5.2 The amount of CHF 3,000 by the Claimant to FIFA. Given that the Claimant has already paid the amount of CHF 1,000 as advance of costs at the start of the present proceedings, the Claimant has to pay the amount of CHF 2,000 to FIFA to the aforementioned bank account with reference to case nr. XXXX.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2 above is to be made and to notify the Single Judge of the Players’ Status Committee of every payment received.

*****

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

Acting Deputy Secretary General

Encl. CAS Directives