DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - COMMISSIONE PER LO STATUS DEI CALCIATORI - CONTROVERSIE TRA SOCIETA'

• Data decisione: 23 aprile 2014 • Stagione sportiva: 2013/2014

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 April 2014

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 23 April 2014,

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

I. Facts of the case

1. On 5 January 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 (hereinafter: the agreement) for the transfer of the Player E (hereinafter: the player), from the Claimant to the Respondent.

2. The agreement stipulated the following clauses:

“(…)

3) For the final transfer of the Player’s rights related to his sport performances [the Respondent] shall pay to [the Claimant] the amount of Euro 3.250.000,00 (…)

8) [The Respondent] and [the Claimant] agree and commit that, in case of future definitely transfer of the [player]’s sports performances and economic rights from [the Respondent] to another Club for a total amount higher than € 3.250.000,00, (including possible loan fee for the loan of the [player] to a third club) [the Respondent] will be obliged to pay to [the Claimant] a 15 % fee to be calculated from the amount exceeding the above mentioned amount of € 3.250.000,00== (…)”

3. According to the player passport issued by the Football Association of country D, the player was registered with Club C on 11 January 2011 and then, on 30 August 2011, the player was registered with Club F (hereinafter: Club F) and loaned back to the Respondent on the same day. On 1 July 2012, after the loan period ended, the player was again registered with the Respondent on a permanent basis. In this respect, the Football Association of country D informed FIFA that the player only played for the Respondent and never for Club F.

4. Moreover, the Football Association of country D indicated that on 29 August 2011, the Respondent and the club from country D, Club F (hereinafter: Club F), signed a “sharing agreement” which, inter alia, stipulated the following:

“The Club [Club F], owner of the rights relating to the sports performance of the [player], following the final transfer agreement stipulated with [the Respondent], hereby recognizes to the latter club [the Respondent], which accepts, a 50% right of participation for the economic rights relating to the subject agreement.

Such sharing right is transferred for the following total amount:

Euro 8.000.000,00= - (…) the [Respondent] commits to pay such an amount through the competent League, according to the following annual terms:

2011-2012 Euro 1.500.000,00

2012-2013 Euro 5.000.000,00

2013-2014 Euro 1.500.000,00

(…)

a) Agreement between the Parties, to be stipulated in compliance with the prescribed terms and conditions; the agreement shall include either the payment of the sharing rights to the Club Owner [NB: Club F], or the players’ final transfer to the former club [NB: the Respondent]. The compensation agreed by the Parties in such a case shall be paid through the competent League upon the expiration of the prescribed terms. (…)”

5. On 11 August 2013, the Claimant lodged a claim at FIFA requesting the Respondent to be ordered to pay the amount of EUR 1,912,500 plus interest at a rate of 5% p.a. as from 31 August 2011.

6. In support of its claim, the Claimant stated that the player was transferred from the Respondent to Club F on 30 August 2011 for an alleged transfer compensation of EUR 16,000,000. The Claimant argued that this amount was taken from a balance sheet published in the official archive of the Chambers of Commerce of country D and provided copies of the relevant documents in this regard.

7. Consequently, based on the sell-on-clause (cf. clause 8 of the transfer agreement), the Claimant claims 15% of EUR 16,000,000 minus EUR 3,250,000, i.e. the amount of EUR 1,912,500 plus interest as from the date of the alleged transfer of the player to Club F.

8. In its reply, the Respondent argued that the player was in fact neither transferred to Club F nor did he ever sign an employment contract with Club F and is still registered with the Respondent. In this context, the Respondent explained that on 29 August 2011, it provided a copy of the “sharing agreement” signed between it and Club F, which is a common instrument explicitly provided for in art. 102bis of the Internal Organization Rules of the Football Association of country D, allowing the two clubs involved in such an agreement to split the financial risks and benefits deriving from the players’ registration. Once such a sharing agreement expires, Club F, as the club holding the participation rights pertaining to the player, would allegedly have to relinquish all economic rights on the player which would then be fully assigned to the club he is registered with, i.e. the Respondent.

9. In addition, the Respondent admitted that it received the amount of EUR 16,000,000 from Club F while simultaneously paying the amount of EUR 8,000,000 to Club F. In case of a subsequent transfer of the player from the Respondent to a third club, Club F would have been entitled to receive 50% of the respective transfer compensation. However, on 22 June 2012, the Respondent and Club F terminated the “sharing agreement” by means of a duly signed “termination letter” in favour of the Respondent, with the consequence that the Respondent had to pay the amount of EUR 6,500,000 to Club F in order to re-acquire Club F’s 50% share of the player’s economic rights.

10. As a result of the above, the Respondent held that even if one would argue that a transfer occurred, the Respondent only received the amount of EUR 1,500,000 pertaining to the economic rights of the player, which would not suffice to trigger the sell-on-clause of art. 8 of the transfer agreement.

11. As documentation in relation to the above, the Respondent submitted a copy of the league G transfer form which indicates that the amount of EUR 16,000,000 is split into three installments: season 2011/12 EUR 3,000,000, season 2012/13 EUR 10,000,000, season 2013/14 EUR 3,000,000.

12. At the same time, the aforementioned “sharing agreement” provided by the Respondent indicated that the amount of EUR 8,000,000 due by the Respondent is also split into three installments: season 2011/12 EUR 1,500,000; season 2012/13 EUR 5,000,000; season 2013/14 EUR 1,500,000. Both documents are signed by both clubs, bear the letterhead of the league G and are dated 29 August 2011.

13. Moreover, the Respondent provided a copy of the agreement terminating the “sharing agreement”, which governs the termination of the sharing right of the Respondent in the amount of EUR 6,500,000, payable by the Respondent in three installments: season 2012/13 EUR 2,170,000; season 2013/14 EUR 2,170,000; season 2014/15 EUR 2,160,000. In addition, said agreement also stipulates the definitive transfer of the player from the “owner club” Club F, to the “participant club”, the Respondent, for the total amount of EUR 13,000,000, payable in three installments: 2012/13 EUR 4,340,000; season 2013/14 EUR 4,340,000; season 2014/15 EUR 4,320,000. Furthermore, said termination agreement stipulates that “the amount indicated for the termination of the sharing agreement shall correspond to 50% of the amount indicated for the assignment of the sharing agreement.” The document is signed by both clubs, bears the letterhead of the league G and is dated 22 June 2012.

14. In its replica, the Claimant referred to the abovementioned art. 102bis of the Internal Organization Rules of the Football Association of country D which stipulates that “a club that has acquired the rights to the sports performance of a professional player following a permanent transfer may simultaneously conclude an agreement (sharing agreement) with the player’s old club pursuant to which the latter may obtain an equal share of the economic benefit deriving from the player’s registration”. Art. 102bis furthermore stipulates that “the club may transfer the player on loan to the club/party of the sharing agreement with the player’s consent and within the statutory time limits.”

15. Based on this, the Claimant argued that in order to conclude a “sharing agreement” in accordance with art. 102bis of the Internal Organization Rules of the Football Association of country D, a previous permanent/definitive transfer agreement must have been signed between the same clubs. Hence, the Claimant alleges that Club F first acquired the sporting rights pertaining to the player from the Respondent for the amount of EUR 16,000,000, that thereupon the player signed an employment contract with Club F, that Club F and the Respondent then signed a “sharing agreement” and that Club F then transferred or loaned the player back to the Respondent against payment of a compensation in the amount of EUR 8,000,000 in accordance with the sharing agreement and art. 102bis of the Internal Organization Rules of the Football Association of country D.

16. In support of its arguments, the Claimant referred to the wording of the “sharing agreement” which stipulates the following: “[Club F], owner of the rights relating to the sports performance of the [player], following the final transfer agreement stipulated with [the Respondent] and [Club F](…)”. Consequently, the Claimant objects to the interpretation of the Respondent that the registration remains in full with one club, in casu the Respondent, and stresses that the player was transferred from the Respondent to Club F against payment of transfer compensation of EUR 16,000,000 and that the “sharing agreement” was only signed thereafter. Therefore, the sell-on-clause as stipulated in the transfer agreement between the Respondent and the Claimant was already triggered on 29 August 2011 and would not depend on any subsequent “sharing agreement”.

17. Moreover, and in support of its argument that the player was immediately transferred back from Club F to the Respondent, the Claimant referred to an article on the official website of Club F in which it was stated that the player will remain at its respective club, i.e. with the Respondent, on loan, and provided a screenshot of the respective website article.

18. In its final position, the Respondent reiterated its previous arguments, however stressing that the relevant amounts which have been exchanged between Club F and the Respondent were retained by the Football League of country D, league G, and set-off against the clubs’ reciprocal credits. The Respondent added that these payments will fall due at the end of the 2014/15 season, and that, by that time, the amount of EUR 16,000,000 will have been deducted from Club F’s account at the Football League of country D, league G, and set-off against the EUR 8,000,000 owed by the Respondent.

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 par. 2 and 3 of the 2012 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber. Consequently, and since the present matter was submitted to FIFA on 11 August 2013, 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.

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) should be applicable as to the substance of the matter. In this respect, he referred to art. 26 par. 1 of the 2012 edition of the Regulations and again to the fact that the claim was lodged with FIFA on 11 August 2013. In view of this, the Single Judge concluded that the 2012 edition of the Regulations is applicable to the matter as to the substance.

3. 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.

4. His competence and the applicable regulations having been established and entering into the substance of the matter, the Single Judge started by acknowledging the abovementioned facts as well as the arguments provided by the parties and the documentation contained in the file.

5. In this respect, and first of all, the Single Judge noted that on 5 January 2011, the parties concluded a transfer agreement for the transfer of the player from the Claimant to the Respondent for an amount of EUR 3,250,000.

6. Moreover, the Single Judge noted that art. 8 of the transfer contract further provided that in case the player would be transferred from the Respondent to a third club, the Respondent has to pay to the Claimant 15% of the amount exceeding the amount of EUR 3,250,000.

7. Furthermore, the Single Judge noted that according to the player passport issued by the Football Association of country D, the player was registered with Club F on 30 August 2011 and immediately loaned back to the Respondent on the same day. Additionally, the Single Judge took note of the fact that on 1 July 2012, after the loan period ended, the player was registered again on a definitive basis with the Respondent and that the player only competed with the Respondent and never with Club F.

8. Moreover, the Single Judge took note that it remained undisputed between the parties that the Respondent concluded a contract with Club F according to which the latter would pay the amount of EUR 16,000,000 to the Respondent for the transfer of the player. Subsequently, the Single Judge observed that the Respondent and Club F signed a “sharing agreement” which, inter alia, stipulated the following:

Such sharing right is transferred for the following total amount:

Euro 8.000.000,00= - (…) the [Respondent] commits to pay such an amount through the competent League, according to the following annual terms:

2011-2012 Euro 1.500.000,00

2012-2013 Euro 5.000.000,00

2013-2014 Euro 1.500.000,00

(…)

9. Furthermore, the Single Judge acknowledged that it also remained undisputed between the parties that, on 22 June 2012, said “sharing agreement” was terminated by both parties and the Respondent agreed to pay an amount of EUR 6,500,000 to Club F in order to reacquire Club F’s 50% “share”, and the player was registered with the Respondent again.

10. Having taking into account the above, the Single Judge reverted to the arguments raised by the parties and noted that the Claimant is requesting 15% of the difference between EUR 16,000,000 and EUR 3,250,000, i.e. the amount of EUR

1,912,500 plus interest at a rate of 5% per year as of the date of registration of the player with Club F.

11. Moreover, the Single Judge noted that the Claimant argued that that the amount of transfer compensation of EUR 16,000,000 appeared in an excerpt of the Chambers of commerce of country D and should therefore be taken into account when calculating the sell-on-fee.

12. Concerning the arguments raised by the Respondent, the Single Judge observed that the latter argued in essence that the player was never actually transferred to Club F and that only a “sharing agreement” was concluded, this in accordance with art. 102bis of the Internal Organization Rules of the Football Association of country D. Furthermore, the Single Judge took due note that, according to the Respondent, the player always remained registered with it and never played a single game for Club F and that the only purpose of the “sharing agreement” was to share the financial risk in connection with the development of the player, with the conclusion that the sell-on-clause of the agreement was never triggered.

13. Subsequently, the Single Judge acknowledged that the Claimant pointed to the wording of art. 102bis of the Internal Organization Rules of the Football Association of country D, which stipulates that such “sharing agreement” can apparently be concluded simultaneously with an agreement for the permanent transfer of a player and that in order to conclude a sharing agreement in accordance with the aforementioned regulations, a previous definitive transfer agreement must have been concluded between the same clubs. According to the Claimant, the fact that the player never played for Club F was solely based on the circumstance that Club F immediately loaned the player back to the Respondent and that, nonetheless, the sell-on-clause was triggered by the first transfer of the player to Club F.

14. In view of the above, and on the basis of the submissions of the Claimant and the Respondent, the Single Judge was keen to underline that it remained uncontested between the parties that the player was transferred on a permanent basis to the Respondent in conformity with art. 3 of the agreement. Then, the Single Judge emphasized that it is equally undisputed that the Respondent entered into an agreement pertaining to the definitive transfer of the player to Club F, by means of the relevant contract dated 29 August 2011.

15. This being established, the Single Judge deemed that firstly, it was to be determined whether the sell-on-clause of art. 8 of the transfer agreement was actually triggered, i.e. if the player was formally transferred to Club F for an amount exceeding EUR 3,250,000.

16. In this respect, the Single Judge recalled that, as confirmed by the Football Association of country D, the player was registered on a permanent basis with Club F on 30 August 2011 and loaned back to the Respondent on the same day. In this respect, the Single Judge formed the belief that the registration of the player with Club F, i.e. the first transfer and the loan of the player back from Club F to the Respondent reflect the fact that two separate transactions had been concluded between Club F and the Respondent.

17. Consequently, the Single Judge was eager to emphasise that, although the player never played for Club F and despite the Respondent’s argument that the “sharing agreement” was only a mean to minimize financial risks in connection with the development of a player, the fact that the player was registered with Club F on the basis of the transfer agreement concluded with the Respondent and against the payment of transfer compensation, clearly indicates that a transfer in the sense of art. 8 of the transfer agreement between the Claimant and the Respondent took place. In support of this argumentation, the Single Judge again pointed to the wording of the relevant provision of the Internal Organization Rules of the Football Association of country D which, in art. 102bis clearly stipulates that a “sharing agreement” can be simultaneously concluded in connection with the definitive transfer of a player. In this context, the Single Judge recalled the wording of the “sharing agreement” in which Club F is called the club “owning the rights pertaining to the player”, which indicates that the registration was definitively transferred to Club F. With those considerations in mind, the Single Judge came to the conclusion that the “sell-on-clause” of said art. 8 of the transfer agreement was triggered insofar as the requirement of the player having been the subject of a definitive transfer from the Respondent to a third club.

18. As a consequence of the above, the Single Judge deemed that, in order to calculate the correct amount of the “sell-on-fee” pertaining to art. 8 of the transfer agreement, the value of the transfer, i.e. the relevant transfer compensation needed to be determined.

19. In this context, the Single Judge reverted to art. 3 of the transfer agreement which stipulated that “[the Respondent] will be obliged to pay to [the Claimant] a 15 % fee to be calculated from the amount exceeding the above mentioned amount of € 3.250.000,00== (…)”.

20. Moreover, the Single Judge recalled the arguments of the parties and noted that according to the Claimant the amount of EUR 16,000,000 should be taken into account when calculating the “sell-on-fee” since said amount agreed between the Respondent and Club F in connection with the player’s transfer and since said amount appeared in the afore-mentioned documents of the Chambers of Commerce of country D. Furthermore, the Single Judge acknowledged the argument of the Respondent that no “sell-on-fee” is payable since, firstly, the amount of EUR 8,000,000 was immediately paid by it to Club F and, secondly, after the “sharing agreement” was terminated, the amount of EUR 6,500,000 was paid by the Respondent to Club F in order to re-purchase the “sharing right” of Club F, and that therefore only the amount of EUR 1,500,000 was effectively paid in connection with the transfer (EUR 16,000,000 minus EUR 8,000,000 and EUR 6,500,000), i.e. less than EUR 3,250,000 as stipulated in art. 8 of the transfer agreement.

21. In this context, the Single Judge again referred to art. 102bis of the Internal Organization Rules of the Football Association of country D which illustrates the model of allowing clubs to register players on a permanent basis and enter into “sharing agreements” simultaneously. In this regard and consistently with the aforementioned, the Single Judge found it worthwhile to underline once more that the player’s registration on a permanent basis in favour of Club F and the loan of the player back from Club F to the Respondent had to be regarded as two separate transactions reflecting two separate contractual agreements, which have to be regarded independently from each other when determining the value of the actual transfer of the player from the Respondent to Club F.

22. In line with the above, it appeared to the Single Judge that the “sharing agreement” and the amount of EUR 8,000,000 it provides for was not part of the transfer of the player from the Respondent to Club F, but was rather part of the transfer of the player from Club F back to the Respondent, which was in fact ultimately performed against payment of EUR 6,500,000 when the “sharing agreement” was terminated. Hence, given that neither the “sharing agreement” and its termination nor the loan of the player were part of the actual transfer of the player triggering the “sell-on-clause” of the transfer agreement, the Single Judge came to the conclusion that, consequently, neither the amount of EUR 8,000,000 nor the amount of EUR 6,500,000 had to be taken into account when calculating the respective “sell-on-fee”.

23. On that basis, and in view of the general legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge held that the Respondent must fulfil the obligation it freely entered into with the Claimant by means of the transfer agreement signed between the parties on 5 January 2011, and therefore, in light of art. 8 in conjunction with art. 3 of said transfer agreement, must pay to the Claimant 15% of the amount exceeding the amount of EUR 3,250,000. Given that the amount of EUR 16,000,000 was paid as transfer compensation by Club F to the Respondent for the transfer of the player to Club F, the Respondent has to pay to the Claimant 15% of EUR 12,750,000 (EUR 16,000,000 minus EUR 3,250,000), i.e. the amount of EUR 1,912,500 plus interest of 5% p.a. as of the date following the transfer of the player, i.e. as of 31 August 2011, bearing in mind that the Respondent had failed to comply with its contractual obligations since the occurrence of the transfer.

24. In view of all of the above, the Single Judge decided to accept the claim of the Claimant and held that the Respondent must pay to the Claimant the total amount of EUR 1,912,500, plus interest as established above in point II. 24.

25. 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 and which states that 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.

26. Taking into account that the claim of the Claimant has been fully accepted, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA. 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 1,9250,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

27. Considering the particular circumstances and the legal difficulties of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000 and concluded that said amount has to be paid by the Respondent 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 accepted.

2. The Respondent, Club C, has to pay the amount of EUR 1,912,500 to the Claimant, within 30 days as from the date of notification of this decision, plus default interest at a rate of 5% p.a. on said amount as of 31 August 2011 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. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent within 30 days as from the notification of the present decision, as follows:

4.1 The amount of CHF 20,000 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

4.2 The amount of CHF 5,000 directly to the Claimant.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 2 and 4.2 are 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

www.tas-cas.org

For the Single Judge of the

Player E

(Club A, country B / Club C, country D)

13/12

Players’ Status Committee

Jérôme Valcke

Secretary General

Encl. CAS Directives