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 11 October 2016

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 11 October 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. On 26 July 2006, the club from country B, Club A (hereinafter: the Claimant) and the club from country F, Club G (hereinafter: Club G), concluded an agreement for the temporary transfer (hereinafter: the loan agreement) of the Player E (hereinafter: the player) from the Claimant to Club G. In addition, the loan agreement contains an option for Club G to purchase 100% of the player’s federative rights and 50% of his economic rights.

2. On 22 June 2009, Club G and the club from country D, Club C (hereinafter: the Respondent) concluded an agreement (hereinafter: the transfer agreement) for the transfer of “100% of the federative and economic rights” (free translation) of the player from Club G to the Respondent.

3. In particular, the transfer agreement specifies that “Club G holds hundred percent (100%) of the federative rights and fifty percent of the economic rights of the player and is authorised by [the Claimant], holder of fifty percent (50%) of the remaining economic rights, to negotiate the conditions of the present contract” (free translation).

4. On 1 July 2009, the Claimant and the Respondent concluded an agreement (hereinafter: the agreement), which, inter alia, reads as follows:

“a. [The Respondent] undertakes to recognise to [the Claimant] 50% of the amount earnt from the future sale of the transfer of [the player] to another club”.

5. On 23 May 2014, the Claimant lodged a claim in front of FIFA against the Respondent, requesting the amount of EUR 1,000,000, plus 5% interest as of “the date of the breach”. In addition, the Claimant requests FIFA to order the Respondent to bear the procedural costs and to pay its legal costs.

6. In its claim, the Claimant explains that in January 2014, the player was transferred from the Respondent to Club H for the amount of EUR 2,000,000 and therefore claims 50% of said amount in accordance with the agreement signed on 1 July 2009.

7. In its reply to the claim, the Respondent points out that the Claimant failed to carry the burden of proof that the player was transferred from the Respondent to Club H for the amount of EUR 2,000,000 and requests FIFA to dismiss the Claimant’s claim.

Player E

8. Furthermore, the Respondent alleges that “the process looks flawed by clear inadmissible, since there is no formal notice expressly provided for by art. 12Bis par. 3 of the Regulations on the Status and Transfer of Players”.

9. In its replica, the Claimant reiterates its claim, submitting an unsigned “private agreement” allegedly concluded between Club H and the Respondent on 27 January 2014 in its support. In particular, the Claimant highlights that the recital 1 of the private agreement refers to an “agreement of participation” allegedly concluded on 27 January 2014 and deposited at the League, by means of which the Respondent transferred to Club H the player on a definitive basis.

10. In its final comments, the Respondent argues that the Claimant does not have “active capacity” to claim anything since “the latter is a different from the real entitled one”. Furthermore, the Respondent outlines that there is no evidence that the player has actually been registered with the Claimant.

11. In continuation, the Respondent points out that it did not agree upon a transfer compensation of EUR 2,000,000 for the transfer of the player from the Respondent to Club H, but rather upon the payment of EUR 750,000 “as participation (50%) for the registration of the [player]”. In support of its assertion, the Respondent submitted an e-mail from the League approving the transfer from the Respondent to Club H for an amount of EUR 1,500,000 and a participation of EUR 750,000. Consequently, the Respondent states that the Claimant would only be entitled to EUR 375,000.

12. On 10 October 2016, the Football Association of country D informed FIFA that “a permanent transfer with participation” refers to an old Football Association of country D rule that allowed two club from country Ds “to participate, in equal percentage, in the economic rights derived by the transfer of a player”.

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 in 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 2016). Consequently, and since the present matter was submitted to FIFA on 23 May 2014, 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: the Procedural Rules) is applicable to the present matter.

Player E

2. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 f) of the 2012 edition of the Regulations on the Status and Transfer of Players, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to different associations.

3. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he referred to art. 26 par. 1 of the Regulations on the Status and Transfer of Players (edition 2016) and again to the fact that the claim was lodged with FIFA on 23 May 2014. In view of this, the Single Judge concluded that the 2012 edition of the FIFA Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter as to the substance.

4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the above-mentioned facts of the case as well as the documents contained in the file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

5. In this respect, and first of all, the Single Judge noted that on 1 July 2009, the Claimant and the Respondent concluded an agreement by means of which “[the Respondent] undertakes to recognise to [the Claimant] 50% of the amount earnt from the future sale of the transfer of [the player] to another club”.

6. In continuation, the Single Judge reverted to the arguments raised by the parties and noted that the Claimant argues that as the Respondent has allegedly transferred the player to Club H for an amount of EUR 2,000,000, it should therefore be entitled to receive the total amount of EUR 1,000,000, which the Respondent never paid.

7. Concerning the arguments raised by the Respondent, the Single Judge observed that the latter does not deny that the player was transferred to Club H but challenges the Claimant’s standing to sue as well as the amount paid for the above-mentioned transfer.

8. Having said the above, the Single Judge focused on the Claimant’s alleged lack of standing to claim. In this respect, the Single Judge emphasised that the Respondent did not substantiate its assertion that “the [Claimant] is a different [entity] from the real entitled one” and therefore, in accordance with art. 12 par. 3 of the Procedural Rules, decided to reject said argument.

Player E

9. Furthermore, the Single Judge noted that the Respondent argues that the Claimant is not entitled to claim since there is no evidence that the player had been registered with it. In this regard, the Single Judge was eager to point out that the agreement concluded on 1 July 2009 does not make the Claimant’s right subject to a registration of the player with the Claimant. Consequently, and in view of the principle pacta sunt servanda, the Single Judge held that the Claimant is entitled to receive 50% of the amount received by the Respondent for the future definitive transfer of the player.

10. The foregoing having been established, the Single Judge turned his attention to the amount paid by Club H to the Respondent for the definitive transfer of the player. In doing so, the Single Judge took note that the Claimant did not submit any documentation in support of its allegation that Club H and the Respondent agreed upon a transfer compensation of EUR 2,000,000 for the transfer of the player. Conversely, the Single Judge observed that the Respondent argues that it agreed with Club H upon the payment of EUR 750,000 “as participation (50%) for the registration of the [player]”. In this respect, the Single Judge outlined that the Respondent presented an e-mail from the League confirming the transfer of the player to Club H with a participation of EUR 750,000. Consequently, and taking into consideration the Football Association of country D’s correspondence dated 10 October 2016, the Single Judge came to the conclusion that the Respondent received an amount of EUR 750,000 for the transfer the player to Club H.

11. In view of all of the above, the Single Judge decided that the Claimant was entitled to receive from the Claimant 50% of the amount received the Respondent for the player’s subsequent transfer. Consequently, the Single Judge held that the Respondent has to pay the Claimant the total sum of EUR 375,000.

12. Furthermore, and in view of the request for interest of the Claimant as well as the date of the transfer of the player from the Respondent to Club H, the Single Judge decided that the Respondent must pay an interest of 5% p.a. on the amount of EUR 375,000 as from 28 January 2014 until the date of effective payment.

13. Lastly, the Chamber 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 that, in accordance with Annex A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

Player E

14. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 1,000,000 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 Annex A).

15. As a result, and taking into account the particularities of the present matter as well as the parties’ degree of success, the Single Judge determined the costs of the current proceedings to the amount of CHF 16,000, of which the amount of CHF 8,000 shall be borne by the Claimant and the amount of CHF 8,000 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 total amount of EUR 375,000, plus 5% interest p.a. on the said amount as from 28 January 2014 until the date of effective payment.

3. If the aforementioned amount 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 costs of the proceedings in the amount of CHF 16,000 are to be paid within 30 days as from the date of notification of the present decision, as follows:

5.1. The amount of CHF 8,000 has to be paid by the Claimant. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the additional amount of CHF 3,000 as costs of the proceedings has to be paid by the Claimant.

5.2. The amount of CHF 8,000 has to be paid by the Respondent.

5.3. The above-mentioned amounts have to be paid 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

Player E

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

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 Dispute Resolution Chamber of every payment received.

*****

Note relating to the motivated decision (legal remedy):

According to article 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

Marco Villiger

Deputy Secretary General

Encl. CAS Directives