F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2018-2019) – fifa.com – atto non ufficiale – Decision 8 August 2018

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 8 August 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 arisen between the parties

and relating to the player, Player E.

I. Facts of the case

1. On 5 August 2015, the club of Country B, Club A (hereinafter: the Claimant) concluded a transfer agreement (hereinafter: the transfer 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 undertook to pay to the Claimant, as transfer fee, the total amount of EUR 350,000 “for the 100% of the federative rights and 100% of the economic rights” of the player.

2. As specified in art. 3 of the agreement “this agreement constitutes the entire agreement and understanding between Club C and Club A [i.e. the Claimant] with respect to the subject matter of this Agreement and may not be changed or modified except by a separate written agreement (..)”.

3. The agreement does not include a sell-on clause in connection with a possible subsequent transfer of the player from the Respondent to a third club.

4. On 21 February 2018, the Claimant lodged a claim with FIFA against the Respondent and requested from the latter the payment of a sell-on fee on the subsequent transfer of the player to the club of Country D, Club F in the amount of 964,500. In addition, the Claimant requested the payment of 5% interest p.a. as of 24 August 2017.

5. In this respect, the Claimant explained that while negotiating the transfer of the player, the parties had agreed upon a sell-on clause in accordance with which the Respondent had undertaken to pay to the Claimant 15 % of the “reduced transfer fee” (hereinafter: the sell-on fee) in case of a subsequent transfer of the player to a third club, i.e. 15% of the subsequent transfer fee minus EUR 350,000 (i.e. the transfer fee paid for the player).

6. In support of the aforementioned allegation, the Claimant provided FIFA with several pieces of correspondence allegedly exchanged with Club C. In particular, the Claimant provided FIFA with the following documentation:

- an offer for the player received on 28 July 2015 by the Respondent by email in which the sell-on fee is mentioned;

- an email dated 28 July 2017 allegedly sent to the Respondent, by means of which the Claimant seems to accept the aforementioned offer of the Respondent. In the relevant email it is inter alia mentioned the following “The player can travel to Country D for his medical. We are now waiting transfer agreement that must be read and approved by us”;

- a correspondence dated 29 July 2015, allegedly sent to the Respondent in which the Claimant inter alia stated the following: “Thanks for your last offer dated 28.07.2015 on our Player E. Club A accept the offer. 1. Tranfer fee: Euro 350.000, - 2. Resale percent: 15% (..)”.

7. The Claimant further alleged that, following the medical test of the player and the latter “having stated his interest in playing for Club C, the transfer agreement was drafted and sent to Club C to Club A on 4 August 2015 at 11.24.45 hrs. and promptly signed and returned by Club A on the same day at 14.00.06 hrs”. In this Respect, the Claimant provided FIFA with several emails.

8. In continuation, the Claimant maintained that, “in March 2016”, its general manager, while reviewing “the transfer agreement (..) noticed that the agreed resale clause was not inserted in the contract” and “to avoid future misunderstanding (..) immediately brought this to Club C’s attention by telephone and a succeeding email (..) in order to confirm the parties’ mutual agreement that the resale clause was indeed a part of their contract”. In this respect, the Claimant provided FIFA with an email dated 30 May 2016 and allegedly addressed to the Respondent.

9. According to the Claimant, the Respondent had failed to provide it with a written confirmation that the parties had agreed on the sell on fee and therefore, on 14 and 20 June 2016 respectively, its legal representative had written to the latter informing it that in “absence of reply, Club A would consider this a tacit acceptance of the resale clause being a part of the club’s agreement”. In this respect, the Claimant provided FIFA with several emails addressed to the Respondent as well as the relevant correspondence dated 14 and 20 June 2016 respectively.

10. In view of the aforementioned and because the Respondent had allegedly transferred the player to Club F on 3 August 2017 for the sum of 6,740,000, the Claimant deemed being entitled to claim the sum of 964,500 “equalling to 15% of the transfer fee less EUR 350,000”. In this respect, the Claimant provided FIFA with several letters addressed to the Respondent requesting the relevant payment.

11. In the Claimant’s opinion the sell-on clause agreed was “binding upon the parties following the parties’ written offer and acceptance”. The Claimant considered its absence in the agreement “either due to a mistake made by Club C when drafting the contract, or a deliberate omission and thus an act of bad faith”.

12. Finally, the Claimant referred to art. 3 of the agreement (cf. point 2 above) and argued that such clause did “not apply in this matter as either: 1) the absence of the resale clause was due to a mistake, or 2) the absence of the resale clause was due to a deliberate act of bad faith by Club C when drafting the contract”.

13. On 5 March 2018, FIFA informed the Claimant that, as a general rule, a claim of a club against another club for an outstanding transfer or sell-on fee is considered by the Players’ Status Committee, in accordance with its established jurisprudence, only if a specific contractual basis for such request exists between the clubs concerned.

14. On 26 March 2018, the Claimant requested FIFA to continue with the proceedings at stake arguing inter alia that “the offer and acceptance forms exchanged between the clubs explicitly demonstrate that the parties agreed on a sell-on clause, and Club C’s conduct after the execution of the transfer agreement support this (..)”.

15. In its response on 28 May 2018, the Respondent rejected the claim of the Claimant in its entirety arguing that the agreement did not include a sell-on fee related to a possible subsequent transfer of the player to a third club.

16. According to the Respondent, the parties had discussed to “give a share to the Claimant from the next sale of the player” but finally its “Board” had decided against it. As further alleged by the Respondent, the Claimant had duly been informed of such decision.

17. Finally, in the Respondent’s opinion, the wording of art. 3 of the agreement (cf. point 2 above) clearly proved its position on the matter.

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 Procedural Rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 21 February 2018, the Single Judge of the Players’ Status Committee concluded that the 2018 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 (cf. art. 21 of the Procedural Rules).

2. Furthermore, 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, on the one hand, to art. 26 par. 1 and 2 of the 2016 and 2018 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 21 February 2018. In view of the foregoing, the Single Judge concluded that the January 2018 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.

3. Subsequently, 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 Regulations 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 present matter, the Single Judge started by acknowledging the facts of the dispute, the arguments of the parties as well as the documentation contained in the file. The Single Judge, however, 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, the Single Judge noted that, on 5 August 2015, the Claimant and the Respondent had concluded a transfer agreement which provided for the Respondent to receive from the Claimant the amount of EUR 350,000. Furthermore, the Single Judge remarked that, in accordance with art. 3 of the agreement the document in question “constitutes the entire agreement and understanding between Club C and Club A [i.e. the Claimant] with respect to the subject matter of this Agreement and may not be changed or modified except by a separate written agreement (..)”. In addition, the Single Judge observed that the agreement did not include a sell-on clause in connection with a possible subsequent transfer of the player from the Respondent to a third club.

6. The Single Judge further took note of the fact that in its claim to FIFA, the Claimant had requested from the Respondent the payment of 964,500 as sell on fee in connection with the alleged subsequent transfer of the player to Club F, arguing that the parties had orally negotiated and agreed upon the payment of a sell on fee to the Claimant in case of a subsequent transfer of the player from the Respondent to a third club.

7. Equally, the Single Judge observed that, for its part, the Respondent had rejected the claim of the Claimant maintaining that there had only been discussions between the parties with regard to the possibility of the Claimant to receive a sell on fee in connection with a possible subsequent transfer of the player to a third club but that, finally, no agreement had been reached in this respect and therefore, no sell on clause had been added to the contract.

8. In view of this dissent between the parties, the Single Judge first of all referred to the content of art. 12 par. 3 of the Procedural Rules and pointed out that in accordance with the provision in question, any party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. The application of said principle in the matter at stake led the Single Judge to conclude that in casu it was for to the Claimant to prove that a sell on clause in relation to the subsequent transfer of the player from the Respondent to a third club had been duly agreed upon between the parties.

9. Having established the above, the Single Judge recalled that it was undisputed that the agreement did not include a clause related to the payment of a sell on fee to the Claimant in case of a subsequent transfer of the player to a third club. Equally, the Single Judge recalled that, as clearly established in art. 3 of the agreement, only the provisions included in the document in question were to be considered valid and binding upon the parties. In this respect, the Single Judge wished to highlight that the agreement had undisputedly been freely signed by both parties. The Single Judge also added that, as a general rule, a party signing a document of legal importance without knowledge of its precise contents does so on its own responsibility and must bear the legal consequences of it accordingly.

10. Notwithstanding the above and for the sake of good order, the Single Judge deemed it important to also mention that all documentation provided by the Claimant in support of the allegation that the parties would have indeed agreed on inserting a sell on clause in the agreement before signing it were dated prior to the agreement itself. Hence, from the Single Judge’s point of view, it was reasonable to assume, as alleged by the Respondent, that when concluding the agreement, the parties had finally decided not to include such a sell on clause. As a result, the Single Judge considered that such documentation did not prove that the Claimant and the Respondent had agreed upon a sell on clause in favor of the Claimant.

11. In view of the all of the aforementioned, taking into account that the Respondent had contested having finally agreed to pay to the Claimant a sell on fee on a possible subsequent transfer of the player to a third club, bearing in mind that, clearly, the agreement did not include such a provision and considering the wording of art. 3 of the agreement as well as in view of the content of art. 12 par. 3 of the Procedural Rules, the Single Judge came to the conclusion that it had to be assumed that no sell on clause in connection with a possible subsequent transfer of the player from the Respondent to a third club had been agreed between the parties.

12. Because of the aforementioned, the Single Judge decided that the claim of the Claimant had to be rejected as it lacked any contractual basis.

13. 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, including 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 (cf. art. 18 par. 1 of the Procedural Rules).

14. In this respect, the Single Judge reiterated that the claim of the Claimant is rejected. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA.

15. 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 higher than CHF 201,000, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

16. In conclusion, and considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore and that the present case did not show particular factual difficulties or specific legal complexities, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000.

17. Consequently, the Claimant has to pay the amount of CHF 15,000 in order to cover the costs of the present proceedings.

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 in the amount of CHF 15,000 are to be paid by the Claimant, Club A. Considering that the latter already paid an advance of costs in the amount of CHF 4,994 at the start of the present proceedings, the Claimant, Club A, has to pay the remaining amount of CHF 10,006.

*****

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

Encl. CAS directives