F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2017-2018) – fifa.com – atto non ufficiale – Decision 29 August 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 29 August 2017,

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, Player E

Player E

I. Facts of the case

1. On 15 January 2013, the Club of Country B, Club A (hereinafter: the Claimant) and the Club of Country D, Club C (hereinafter: the Respondent) concluded a loan agreement (hereinafter: the agreement) by means of which the Claimant would temporarily transfer the Player, Player E (hereinafter: the player) to the Respondent.

2. According to articles 2 and 3 of the agreement, the loan “shall start 15 January 2013 and ends on 30 June 2014 with an option for one additional season (2014/2015). The option has to be renewed before 31 March 2014” and “[the Respondent] shall not pay any contribution to [the Claimant] for this loan period”.

3. Moreover, article 11 of the agreement stated that, “in the event of a dispute arising from this [agreement], each party shall pay and be responsible for its own costs, including any legal costs, incurred which relate to any such dispute, including costs arising out of mediation, arbitration, litigation, or any alternative dispute resolution”.

4. Finally, in accordance with article 12 par. 2 of the agreement, the Claimant can transfer the player to another club during the agreed loan period under the following cumulative conditions:

1) “only a transfer during the transfer periods (Mercato) authorized by the Football Federation of Country D; AND

2) the transfer amount has to be a minimum of EUR 3,000,000 (three million euros) if the transfer occurs before October 2013 and the transfer amount has to be a minimum of EUR 2,000,000 (two million euros) if the transfer occurs after October 2013; AND

3) [the Respondent] did not exercise their right to purchase [the player] at the same conditions as the another club (pre-emption right).

(…)

12. 3 in case of transfer during the loan time to [the Respondent], the parties agreed that [the Respondent] will receive directly 50% (fifty per cent) of the transfer amount.

12. 4 [the Respondent] has an option to renew this [agreement], on the same basis, for 1 (one) additional season. The option has to be renewed before 31 March 2014.

12. 5 [the Respondent] has the right to purchase [the player] at the same conditions as the another club (pre-emption right)”.

5. On 26 October 2016 with amendments made on 14 November 2016 and on 16 December 2016, the Claimant lodged a claim against the Respondent in front of FIFA alleging that the Respondent did not comply with its contractual duties.

6. In this respect, the Claimant further explained that, by means of a letter dated 25 March 2014, the Respondent exercised its contractual option right in relation with the player and extended the agreement for one additional season, thus, until 30 June 2015.

7. On 14 February 2015, the Claimant confirmed having accepted and signed the written proposal from the Respondent in relation with the definitive transfer of the player directly from the Respondent to the Club of Country F, Club G, during the transfer window and upon the terms and conditions as follows:

“Agreed transfer amount 2,500,000 euro payable in 2 instalments

First: 1,000,000 euro payable within 24 hours after receiving of the ITC from Football Association of Country D

Second: 1,500,000 euro payable on or before 22 February 2016

Solidarity contribution: CLUB G will pay up to a maximum of 125,000 euro towards any solidarity contribution obligations (5%).

In case of transfer during the loan time to [the Respondent], of course [the Respondent] agree that [the Claimant] will receive directly 50% (fifty percent) of the transfer amounts after receiving”.

8. Furthermore, the Claimant explained that, by means of an invoice no. XXX dated 22 February 2016 and a letter dated 26 September 2016, it reminded the Respondent of the allegedly outstanding amount of EUR 750,000 setting a time limit of 48 hours to remedy the default.

9. Finally, the Claimant alleged that, by means of a letter dated 9 October 2016, the Respondent acknowledged having concluded a transfer agreement with Club G in relation with the definitive transfer of the player and expressed that it was willing to pay the amount of EUR 750,000 to the Claimant “within the 15 working days after effective receipt on the financial account of [the Respondent]”.

10. Consequently, the Claimant requested from the Respondent the allegedly outstanding amount of EUR 750,000, corresponding to 50% of the second instalment of the transfer fee (cf. point 1.7 above), “plus the appropriate fines and interest, pro rata die” as of 22 February 2016 until the date of effective payment as well as the annexation of its claim to the case XXX involving the Respondent against Club G and the reimbursement of all the proceeding and legal costs.

11. In its reply to the claim lodged against it, the Respondent acknowledged having concluded the loan agreement with the Claimant and the transfer agreement with Club G, however, contested the claim in its entirety.

12. In this respect, the Respondent confirmed the content of its letter dated 9 October 2016.

13. Furthermore, the Respondent alleged that the legal basis of the present dispute is the agreement dated 14 February 2015 signed by the Respondent and the Claimant, by means of which the latter agreed to be paid by the Respondent only once the Respondent had been paid by Club G. Considering that it had not yet received all amounts due from Club G, the Respondent held that no amount was due to the Claimant yet.

14. Finally, the Respondent rejected any immediate payment requested by the Claimant.

15. In its replica, the Claimant reiterated its initial claim and requested “the annexation of this case/claim ref. nr. XXX to the case/claim ref. nr. XXX, which involves both [the Respondent] and CLUB G, and also the condemnation of [the Respondent] to inform, namely on the latter case, the [Claimant]’s bank account, in order to the 50% (fifty percent) of the payment of the second instalment (EUR 750,000, plus the appropriate fines and interest, pro rata die) be made by CLUB G to the benefit of [the Claimant]”.

16. In its duplica, the Respondent reiterated its position and maintained all its previous arguments.

17. The Respondent further alleged that, following the decision passed on 17 January 2017 by the Single Judge of the Players’ Status Committee in the case XXX, it reminded on 2 February 2017 Club G of the amount of EUR 1,500,000 as outstanding transfer fee as well as 5% interest p.a. as from 22 February 2016 until the date of effective payment, to be paid. According to the Respondent, the said amount remains to date still due and unpaid and the case is pending at FIFA’s Disciplinary Committee.

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

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed which edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) was applicable to the matter at hand. In this respect, considering that the present matter was submitted to FIFA on 26 October 2016, the Single Judge concluded that the 2015 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the 2015 and 2017 editions of the Procedural Rules).

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 confirmed that the present matter was submitted to FIFA on 26 October 2016 and, therefore, concluded that the 2016 edition of the Regulations is applicable in the matter at hand as to the substance (cf. art. 26 par. 1 and par. 2 of the 2016 edition of the Regulations).

3. With regard to his competence, the Single Judge confirmed that on the basis of 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 2012 edition of the Regulations on the Status and Transfer of Players he is competent to deal with the matter at stake, which concerns a dispute between two football clubs affiliated to two different associations.

4. His competence and the applicable regulations having been established and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties 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 that he considered pertinent for the assessment of the matter at hand.

5. In doing so and to begin with, the Single Judge acknowledged that, on 15 January 2013, the Respondent and the Claimant concluded a loan agreement in relation with the loan of the player from the latter to the Respondent, valid from its date of signature until 30 June 2014 with an option for one additional season 2014/2015, to be renewed before 31 March 2014 by the Respondent.

6. Subsequently, the Single Judge took note that it is undisputed that on 25 March 2014, the Respondent exercised its contractual option right for one additional year, i.e. until 30 June 2015, and that it acknowledged having concluded, during the contractual loan period, a transfer agreement with the Club of Country F, Club G in relation with the definitive transfer of the player to the latter. Furthermore, the Single Judge remarked that according to the written proposal dated 14 February 2015, the transfer fee in the amount of EUR 2,500,000, was payable in two instalments as follows:

- 1st instalment in the amount of EUR 1,000,000 payable within 24 hours after receiving the ITC from the Football Association of Country D, and

- 2nd instalment in the amount of EUR 1,500,000 due on or before 22 February 2016.

7. In continuation, the Single Judge noted that, on the one hand, the Claimant maintained being entitled to receive from the Respondent the outstanding amount of EUR 750,000, alleging that it had not yet received the amount corresponding to 50% of the second instalment of the transfer fee which fell due on 22 February 2016 in accordance with the agreement concluded between the Respondent and Club G as well as the letter dated 14 February 2015 confirming the terms and conditions of said transfer agreement.

8. In view of the above, the Claimant deemed being entitled to receive from the Respondent the amount of EUR 750,000 corresponding to 50% of the second instalment of the transfer fee of EUR 1,500,000 in relation with the definitive transfer of the player from the latter to Club G, “plus the appropriate fines and interest, pro rata die” as from 22 February 2016 until the date of effective payment and further requested the annexation of its claim to the case XXX involving the Respondent against Club G, as well as the reimbursement of all the proceeding and legal costs.

9. In continuation, the Single Judge focussed his attention to the content of the letter dated 14 February 2015 submitted by the Claimant to FIFA and by means of which the latter accepted the definitive transfer of the player from the Respondent to Club G and which stated inter alia that, “in case of transfer during the loan time to [the Respondent], of course [the Respondent] agree that [the Claimant] will receive directly 50% (fifty percent) of the transfer amounts after receiving”.

10. On the other hand, the Single Judge observed that, for the purpose of its defence, the Respondent acknowledged having concluded the transfer agreement with Club G and confirmed in writing its willingness to pay to the Claimant the amount of EUR 750,000 “within the 15 working days after effective receipt on the financial account of [the Respondent]”. Furthermore, the Respondent was of the opinion that the legal basis of the present dispute is the agreement dated 14 February 2015 signed by the parties to the present dispute.

11. At this stage, the Single Judge referred to art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

12. In doing so, the Single Judge thoroughly analyzed the documents on file and, in particular, the content of the documentation and allegations submitted by the parties. In this regard, the Single Judge recalled that the Respondent acknowledged its willingness to pay to the Claimant the amount of EUR 750,000.

13. As a result, considering the legal principle of burden of proof as well as the argumentation and documentation presented by both parties, the Single Judge considered that it remained uncontested that the Claimant had not received the outstanding payment of EUR 750,000 from the Respondent.

14. Turning his attention to the letter dated 14 February 2015 and in accordance with the agreement concluded between the Respondent and Club G, the Single Judge emphasised that, it remained undisputed that the Claimant is contractually entitled to receive from the Respondent a full payment of the 50% of the second instalment of the transfer fee of EUR 1,500,000.

15. Bearing in mind the aforementioned and the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge decided that the Respondent had breached its contractual obligations towards the Claimant and should, as a consequence, be liable to pay to the Claimant the amount of EUR 750,000 in accordance with the agreement concluded between the Respondent and Club G and the letter dated 14 February 2015.

16. At this point, the Single Judge referred to the Respondent’s argument that the payment to the Claimant is only due once it has received the payment from Club G. Furthermore, the Single Judge noted that according to the Respondent, the latter payment had been outstanding since 22 February 2016 and that the Single Judge of the Players’ Status Committee had rendered a decision on 17 January 2017 condemning Club G to pay the outstanding amount of EUR 1,500,000 within 30 days as from the notification of the decision. In this respect, considering the specific circumstances of the matter at hand, as well as the wording of the written proposal which was not unambiguous in the opinion of the Single Judge, he concluded that the continuous non-payment by Club G could not be to the detriment of the Claimant which is not a party to the agreement concluded between the Respondent and Club G, and can therefore not be reasonably expected to conform itself to the (un)willingness of a third party to pay a certain amount.

17. In continuation and in view of the Claimant’s request for “appropriate fines and interest, pro rata die” as of 22 February 2016 until the date of effective payment and in line with the well-established jurisprudence of the Players’ Status Committee, the Single Judge decided to grant interest for late payment at a rate of 5% p.a. on the aforementioned amount, i.e. EUR 750,000, as from 23 February 2016 until the date of effective payment.

18. In addition, with regard to the Claimant’s request related to the claimed legal costs, the Single Judge referred to art. 18 par. 4 of the Procedural Rules as well as to its longstanding and well-established jurisprudence, in accordance with which no procedural compensation shall be awarded in proceedings in front of the Players’ Status Committee. Consequently, the Single Judge decided to reject the Claimant’s request relating to legal costs.

19. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and held that the Respondent has to pay to the Claimant the amount of EUR 750,000, plus interest at a rate of 5% p.a. on the said amount as from 23 February 2016 until the date of effective payment and that any further claims lodged by the Claimant are rejected.

20. 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 the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of CHF 25,000 are levied. 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.

21. In respect of the above, the Single Judge reiterated that the claim of the Claimant is partially accepted only due to its claim for legal fees and that the Respondent is the party at fault. Therefore, the Single Judge concluded that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

22. 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. Consequently and taking into account that the total amount at dispute in the present matter is over CHF 201,000 the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

23. In conclusion and in view of the circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000, which 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, Club A, within 30 days as from the date of notification of this decision, the amount of EUR 750,000 as well as 5% interest p.a. on the said amount as from 23 February 2016 until the date of effective payment.

3. If the aforementioned sum, plus interest, is not paid within the stated time limit, 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, Club A, are rejected.

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

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

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 5,000 has to be paid directly to the Claimant, Club A.

6. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2 and 5.2 above 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 art. 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

Omar Ongaro

Football Regulatory Director

Encl. CAS directives