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 11 July 2017

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 11 July 2017,

by

Mr 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 12 June 2014, the club of Country B, Club A (hereinafter: “the Claimant”), and the club of Country D, Club C (hereinafter: “the Respondent”) concluded a transfer contract (hereinafter: “the loan contract”) in connection with the temporary transfer of the Player E (hereinafter: “the player”) from the Claimant to the Respondent from 15 June 2014 until 30 June 2015.

2. Point 1 of the loan contract established that the Claimant transferred the player to the Respondent “for the period from June 15, 2014 to June 30, 2015 with an option of an exclusive acquisition of professional rights for the player by Club C”.

3. Point 3 of the loan contract established that the Respondent should pay to the Claimant the amount of USD 100,000 for the loan of the player.

4. Point 4 of the loan contract stated that: “Club C [i.e. “the Respondent”] has to notify Club A [i.e. “the Claimant”] no later than 30.05.2015 in written form about its decision to gain professional rights for the player. The option is understand as complete with the payment. If the payment isn´t done, the option is not valid and the player must return to Club A [i.e. “the Claimant”]”.

5. Point 5 of the loan contract provided that: “In case Club C [i.e. “the Respondent”] will exercise the option to gain professional rights for Player E, Club C [i.e. “the Respondent”] will pay to Club A [i.e. “the Claimant”] the fee of 250,000 US Dollars net, free of cost and any taxes till 30.06.2015. The amount paid as Loan Fee is not deducible from the option value. If the payment isn´t done by 30.06.2015. The option is not valid and the player must return to Club A [i.e. “the Claimant”]”.

6. On 15 June 2014, the player and the Respondent concluded an employment contract valid until 30 June 2015, which was, on 27 December 2014, mutually terminated.

7. On 7 July 2015, the Claimant lodged a claim in front of FIFA against the Respondent requesting the payment of the following amounts:

(1) USD 120,000 as damage compensation equivalent to the player´s remuneration from January 2015 until 30 June 2015;

(2) USD 250,000, as per point 5 of the loan contract;

(3) 5% annual interest until the date of effective payment.

8. The Claimant argued that the Respondent breached the contract by terminating the employment relationship with the player in an irregular way and without notifying them formally about its early termination. In this regard, the Claimant alleged that on 2 January 2015, the player came back informing that the employment contract with the Respondent has been terminated on 18 November 2014. Consequently, the Claimant had to assume the financial obligations towards the player from January until June 2015 even though it could not register him because they had already passed the maximum authorised amount of registrations for that period. (i.e. 25 players according to the Circular 33 dated 15 December 2014 of the Professional Football League).

9. In this context, the Claimant stated that the Respondent had the obligation to pay a monthly salary (USD 20,000) to the player which had to be borne by the Claimant.

10. Moreover, the Claimant argued that when the player was loaned to the Respondent, it had to acquire the rights of other players for an amount of USD 435,311.82. The Claimant enclosed a certification issued by its Finance department.

11. Furthermore, the Claimant claimed being affected by the Respondent´s termination of the employment contract with the player since it did not receive the amount of USD 250,000 as option for the definitive transfer of the player (cf. point 5 of the loan contract).

12. In its reply to the claim, the Respondent rejected the Claimant’ claim for ungrounded and stated that the latter failed to prove any damages allegedly suffered due to the termination of the employment contract with the player.

13. The Respondent further stated having fulfilled its financial obligations towards the Claimant by paying on 19 June 2014, the loan fee amounting USD 100,000.

14. With regard to the request of USD 250,000, the Respondent stated that it was ungrounded since it neither exercised the option by sending a written notice to the Claimant before 30 June 2015, nor executed the relevant payment as per points 4 and 5 of the contract. Moreover, the Respondent deemed that point 4 of the loan contract established that if it would not exercise the option, the player would have to return to the Claimant.

15. With regard to the request of USD 120,000, the Respondent alleged that it was also ungrounded since there is no provision in the contract preventing them and/or the player to terminate prematurely the relevant employment contract. The Respondent alleged that the early termination of the loan period did not result in any negative consequence to the Claimant.

16. Moreover, the Respondent argued that after the termination, the player retuned to the Claimant and before the player left Country D, he signed a written statement confirming that he had no pending claims towards the Respondent.

17. Furthermore, the Respondent stated that the Claimant failed to prove that the player could not play for them until 30 June 2015. In this regard, the Respondent argued that, in fact, the Claimant did not request the International Transfer Certificate (ITC) and failed to register the player on time. The Claimant did not suffer any damage since the player was available for them. The Respondent added that immediately after the termination of the employment contract (i.e. on 31 December 2014) it returned the ITC of the player. However, the Claimant failed to insert certain data into Transfer Matching System (TMS) and register the player. According to the Respondent, the Claimant never requested the relevant ITC “before 10 July 2015”. The Respondent further argued, “it is clear that the Claimant himself acted in a manner that caused negative consequences of the Claimant”.

18. Finally, the Respondent stated that the fact that it had the player for 6 months and paid the full amount of the loan fee (USD 100,000) to the Claimant should be taken into consideration by the deciding body.

II. Considerations of the Single Judge of the Players´ 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 7 July 2015. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2015; 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 7 July 2015, the 2015 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 4 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 noted that on 12 June 2014 the Claimant and the Respondent concluded the loan contract, valid from 15 June 2014 until 30 June 2015, which established a loan fee amounting to USD 100,000.

6. Subsequently, the Single Judge acknowledged that on 15 June 2014 the player and the Respondent concluded an employment contract which was thereafter terminated by mutual agreement on 27 December 2014 and that according to the Transfer Matching System (TMS) on 10 July 2015 the player was registered again for the Claimant.

7. At this stage, the Single Judge recalled that it remained undisputed that the Respondent paid the loan fee to the Claimant amounting to USD 100,000 on 19 June 2014. However, the Claimant maintained being entitled to receive the amount of USD 120,000 as damage compensation and USD 250,000 as additional compensation in accordance with point 5 of the loan contract.

8. The Single Judge continued by focusing his attention on the Claimant´s request for USD 120,000 as damage compensation equivalent to the total player´s remuneration for the period from the termination of the employment contract concluded between the Respondent and the player (i.e. 27 December 2014) until the end of the loan (i.e. 30 June 2015).

9. Moreover, the Single Judge acknowledged that the Claimant argued having paid the player´s remuneration during the above-mentioned 6 months, even though they were not able to register the player based on an alleged domestic rule.

10. In this context, the Single Judge wished to recall the principle that, if a player is transferred internationally on a temporary basis (i.e. loan) the suspension of the effects of the contract ceases to exist when the player´s loan ends either prematurely or by mutual expiration.

11. In the case at hand, the Single Judge noted the Claimant´s allegation that unexpectedly, due to the premature termination of the employment contract it had to assume the payment of the player´s salaries during the residual period of the loan.

12. Consequently, the Single Judge decided to analyse the wording of the loan contract and concluded that it did not contain any provision foreseeing this situation. In other words, the Single Judge emphasised that the loan contract does not contain any clause which would provide any consequence in case of the early termination of the employment contract between the player and the Respondent.

13. In this context, the Single Judge deemed important to add that in case the Claimant considered that it would suffer any damage in case of an early termination of the loan period, it was its obligation to foresee such damages by inserting the relevant clause in the loan contract.

14. In view of all the above, the Single Judge decided to reject the Claimant´s claim for USD 120,000 as damage compensation in view of its lack of contractual basis.

15. Furthermore, the Single Judge added that in view of the fact that the loan contract lacked of specific provision contemplating the early termination of the employment contract between the player and the Respondent, the issue regarding whether or not the Claimant was prevented to register the player turned moot.

16. In continuation and with respect to the Claimant´s request for USD 250,000 as additional compensation, the Single Judge stated that the option to acquire the services of a player on a definitive basis was literally an “option” purely hypothetical and certainly not an obligation for the club having the player on loan (i.e. the Respondent).

17. Furthermore, the Single Judge referred to point 5 in fine of the loan contract which stated that if the Respondent would not exercise its option duly, the player must return to the Claimant.

18. Therefore, the Single Judge concluded that the Claimant´s claim for USD 250,000 lacks legal basis, taking into account that the Respondent was not in a position to exercise the option to acquire the services of the player on a definitive basis since it terminated the relevant employment contract on 27 December 2014.

19. In view of all the above, the Single Judge decided that the Claimant´s claim is entirely rejected.

20. 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).

21. 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 USD 370,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

22. 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 17,000 which shall be borne by the Claimant.

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

1. The claim of the Claimant, Club A, is rejected.

2. The final costs of the proceedings amounting to CHF 17,000 are to be paid by the Claimant, Club A, within 30 days as from the date of notification of the present decision. Taking into account that the latter has already paid the amount of CHF 5,000 as advance of costs at the beginning of the present procedure, the Claimant, Club A, has pay the outstanding amount of CHF 15,000 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

*****

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).

For the Single Judge of the

Players’ Status Committee

Marco Villiger

Chief Legal & Integrity Officer

Encl. CAS directives