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 5 June 2018

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 5 June 2018,

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

I. Facts of the case

1. On 25 August 2016, the Club of Country B Club A (hereinafter: the Claimant) concluded a transfer agreement (hereinafter: the agreement) with the Club of Country D, Club C (hereinafter: the Respondent) in relation to the transfer of the player, Player E (hereinafter: the player) to the latter club by means of which the Respondent had to pay to the Claimant a transfer fee of EUR 900,000.

2. In addition, pursuant to art. 4 of the agreement, the parties agreed that “Club C will pay to CLUB A a sum of EUR 150,000.- net […] for maximum two times (EUR 300,000.- net), once Club C will participate in the Group Stages of the UEFA Champions League during the contract time with the player and the player will have participated in at least 50% of Club C’s league matches (as a member of the starting eleven or as a playing substitute) during the season that Club C gain qualification to the Group Stages of the UEFA Champions League.

Recognition that the Player has played in league matches is based on the entries made by the referee in the official match report sheet for each official match.”

3. Furthermore, the agreement stipulates in art. 6 that “in case of delay with any payment according to this agreement Club C will be obliged to pay to Club A the contractual penalty in the amount of 5,0% per annum. The contractual penalty is due within ten days after Club C receives the proper invoice regarding the contractual penalty from Club A.”

4. On 24 August 2017, the Claimant issued an invoice to the Respondent for the payment of EUR 150,000, corresponding to the “Qualification to the Group Stages of the UEFA Champions League 2017/18”.

5. On 29 September 2017, however, the Respondent sent a letter to the Claimant, claiming that “for the season 2017/2018, after two qualification rounds, [Club C] was eventually qualified to participate in the UCL Group Stages on 22nd August 2017. Having said that, our club gained qualification to the UCL Group Stages during the current sporting season, namely 2017/2018 while the player, Player E is on loan to Club F. Consequently, the second condition of the player’s participation for the season 2017/2018 is not met, therefore the abovementioned conditional amount is not payable”.

6. On 9 October 2017, the Claimant replied to the Respondent’s letter, claiming that the latter made an incorrect interpretation of art. 4 of the agreement. In particular, the Claimant explained that “it is not correct that your club gained qualification for the UCL Group Stages only after winning two qualification rounds. The main condition for the qualification is the win of the championship in Country D in the last season. Only as additional condition, your club had to win two qualification rounds. […] It is therefore clear that the player at the time at which your club gained the qualification already must have finished the relevant application matches (‘will have participated’). The relevant season for the participation matches of the player can therefore only be the season before the UCL Group Stages”.

7. On 24 October 2017, the Respondent once again contested the Claimant’s right to receive the amount established in art. 4 of the agreement, claiming that such article provides for three cumulative conditions, namely “i) Club C’s participation in the Group Stages of the UEFA Champions League; ii) Club C’s participation in the Group Stages of the UEFA Champions League taking place during the contract time with the player and iii) the player will have participated in at least 50% of Club C league matches […] during the season that Club C gain qualification to the Group Stages of the UEFA Champions League”. According to the Respondent, neither the second nor the third conditions were met.

8. On 10 January 2018, the Claimant lodged a claim with FIFA against the Respondent on the basis of art. 4 of the agreement and requested from the latter club the payment of EUR 150,000, plus 5 % interest p.a. as from 24 August 2017. Furthermore, the Claimant requested that the Respondent has to bear all the costs related to the present case.

9. In its claim, the Claimant argued that the player participated in 23 of the 30 games during the 2016/2017 season and as the Respondent won the League G of Country D in the season 2016/2017 they qualified to participate in the third round of the Champions League Qualification, which took place during the 2017/2018 season. In the third qualifying round, the Respondent defeated Club H and after two wins in the Play-off games of the Champions League against Club J (16 August 2017 & 22 August 2017) the Respondent qualified for the Champions League Group Stage. As a result of the above, the Claimant deemed that the requirements of art. 4 of the agreement were all met and therefore the amount of EUR 150,000 is due.

10. Moreover, the Claimant pointed out that the relevant season for the qualification for the Champions League is the 2016/2017 season and not the 2017/2018 season, which is emphasised in the wording of art. 4 of the agreement which states “[…] once Club C will participate in the Group Stages of the UEFA Champions League during the contract time with the player and the player will have participated in at least 50% of Club C’s league matches […]”.

11. In its response on 16 April 2018, the Respondent rejected the claim of the Claimant.

12. In this respect, the Respondent first points out that the player was loaned to the Club of Country K, Club F on 30 August 2017. The Respondent further explained that the EUR 150,000 are not due, as not all conditions of art. 4 have been met. According to Club C, the “club gained its qualification to the Group Stage of UEFA Champions League 2017/2018 on 22 August 2017 after participating in the third qualifying round and upon winning [against] Club H and after participating in the Play-offs qualifying round and upon beating Club J. Therefore, it becomes evident that the qualification to the UEFA Group Stages (not to the UEFA Champions League Competition as erroneously the Claimant interprets the relevant clause) was gained on 22.08.2017, therefore during the current sporting season 2017/2018. As such the Player during the current season [2017/2018] was not even registered with Club C thus the Player did not participate in the 50% of Club C League Matches, as it was agreed in the transfer agreement dated 25.08.2016.”

13. Furthermore, the Respondent argued that “the party who drafted the Transfer Agreement, i.e. the Claimant, is the same party who carries the burden of proving the existence of an agreement that shift the accurate and explicit wording of the transfer agreement. Such uncertainty- if any- in the wording shall be interpreted against the Claimant having also in mind that CLUB A drafted the clause 4 and the entire agreement was solely responsible for the choice of words in the Transfer Agreement and shall, therefore, bear the consequences of the unresolved ambiguity surrounding the clause 4 – if any.”

14. In view of the above, the Respondent requested FIFA to fully reject the Claimant’s claim and that the Claimant shall be condemned to pay all costs of the present proceedings.

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 par. 2 and 3 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 27 February 2018. Therefore, the Single Judge concluded that the 2018 edition of 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 is 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 2018 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 February 2018. In view of the foregoing, the Single Judge concluded that the 2018 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. The Single Judge emphasised, however, 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 acknowledged that it was undisputed between the parties that, on 25 August 2016, a transfer agreement was concluded relating to the transfer of the player from the Claimant to the Respondent and that said agreement contained a conditional clause, namely art. 4, which stipulated the following:

“Club C will pay to CLUB A a sum of EUR 150,000.- net […] for maximum two times (EUR 300,000.- net), once Club C will participate in the Group Stages of the UEFA Champions League during the contract time with the player and the player will have participated in at least 50% of Club C’s league matches (as a member of the starting eleven or as a playing substitute) during the season that Club C gain qualification to the Group Stages of the UEFA Champions League.

Recognition that the Player has played in league matches is based on the entries made by the referee in the official match report sheet for each official match.”

6. Equally, the Single Judge observed that it was undisputed between the parties that the Respondent had in fact qualified, for the Group Stage of the 2017/2018 edition of the UEFA Champions League.

7. Likewise, the Single Judge acknowledged that it was undisputed between the parties that the player had left the Respondent on 30 August 2017 to join another club on loan.

8. Having established the above, the Single Judge noted that the Claimant lodged a claim with FIFA against the Respondent stating that the condition of art. 4 of the agreement had been fulfilled, as the Respondent had qualified for the 2017/2018 group stage of the UEFA Champions League and therefore requested to be paid EUR 150,000 by the Respondent.

9. Furthermore, the Single Judge took note that, in its reply, the Respondent stated that not all conditions of art. 4 of the agreement have been met, as the Respondent had qualified for the Group stages of the UEFA Champions League on 22 August 2017 and therefore during the sporting season of 2017/2018. At that time, the player had not participated in the required amount of games, as he was on loan at Club F as from 30 August 2017.

10. Finally, the Single Judge noted that the Respondent pointed out that the transfer agreement was drafted by the Claimant and therefore the Claimant should bear the consequences of the unresolved ambiguity.

11. In view of the foregoing, the Single Judge highlighted that the central issue in the matter at stake would be to determine how clause 4 of the agreement shall be interpreted i.e. to ascertain the relevant season for the participation of the league games, and consequently to establish whether the Claimant should be entitled to the conditional payment therein stipulated.

12. After having carefully examined the parties’ positions, taking into consideration all the aforementioned arguments, the Single Judge observed that the FIFA Regulations did not contain any provision related to the interpretation of contractual clauses as the one at hand and therefore he referred to Swiss law. In this respect, he emphasized that he must apply the principle of trust in order to seek the meaning that the parties could have given, according to the rules of good faith, to their reciprocal manifestation of intent. The Single Judge also acknowledged that the interpretation of the clause should not be purely literal, but rather consider all circumstances surrounding the conclusion of the agreement. This principle is even more important when the parties conclude an agreement in a foreign language.

13. In this regard, and after having analyzed clause 4 of the agreement, the Single Judge held that the expression “will have participated” indicated that the relevant games had to be played prior to the Group Stage qualification. The Single Judge also noted that the clause referred to the participation of a certain percentage of games focusing solely on the League of Country D, which is an indication that the parties expected that the player should play a part in the Respondent’s qualification to the Group Stages via the League of Country D. In this respect, the Single Judge concluded that the relevant games in the League of Country D for the qualification to the UEFA Champions League were the ones played in the previous season i.e. the sporting season of 2016/2017, as only a certain league position would enable the Respondent to proceed to the Group Stages.

14. Consequently, and taking into consideration that it was undisputed between the parties that the Respondent had qualified for the group stage of the 2017/2018 edition of the UEFA Champions League, the Single Judge decided that the condition of art. 4 of the agreement had been fulfilled.

15. In view of all of the above, the Single Judge concluded that Respondent must pay to the Claimant the amount of EUR 150,000, in accordance with art. 4 of the agreement. Furthermore, taking into account the Claimant’s request for interest, as well as his jurisprudence and the wording of art. 6 of the agreement, the Single Judge decided that 5% interest p.a. would apply over the amount of EUR 150,000 as from 3 September 2017, i.e. 10 days after the issuance of the invoice by the Claimant on 24 August 2017.

16. 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).

17. In respect of the above, and taking into account that the Claimant is the successful party in the present proceedings, as its claim is almost entirely accepted, the Single Judge concluded that the Respondent has to bear the full costs of the current proceedings before FIFA.

18. 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 150,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

19. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

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II. 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 the present decision, the amount of EUR 150,000 plus 5% interest p.a. on said amount as from 3 September 2017 until the date of effective payment.

3. If the aforementioned sum, plus interest as established above, 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 other claims lodged by the Claimant, Club A, are rejected.

5. The final costs of the proceedings in the amount of CHF 15,000 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 11,000 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 4,000 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 Players’ Status Committee of every payment received.

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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:

Omar Ongaro

Football Regulatory Director