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 15 November 2018

Decision of the

Single Judge

of the

Players’ Status Committee

passed in Zurich, Switzerland, on 15 November 2018,

by

Johan van Gaalen (South Africa)

Single Judge of the Players’ Status Committee,

on the claim presented by the club,

Club A, Country B

as Claimant/Counter-Respondent

against the club,

Club C, Country D

as Respondent/Counter-Claimant

regarding a contractual dispute between the parties

relating to the player E

I. Facts of the case

1. On 28 August 2015, the club of Country B, Club A (hereinafter: Club A or Claimant/Counter-Respondent), and the club of Country D, Club C (hereinafter: Club C or Respondent/Counter-Claimant), concluded an agreement for the loan of the player, Player E (hereinafter: player), from Club A to Club C for the period between 31 August 2015 and 31 May 2016 (hereinafter: loan period).

2. Clause 7 of the loan agreement reads as follows:

“In consideration of the temporary transfer of the Player’s registration, Club C shall pay the amount of EUR 3,800,000 (…). The loan fee includes FIFA solidarity and training compensation mechanism contained within the FIFA Regulations for the Status and Transfer of Players payable to any other clubs and/or national associations and Club C shall be entitled to deduct such amounts if so due from the loan fee payable to Club A”. The loan fee was payable in 4 instalments, the last one of EUR 250,000 falling due on 31 May 2016.

3. Clause 8 of the loan agreement reads as follows:

“In the event that the Player does not start for Club C in at least 70% of the League of Country D and UEFA Europa League matches played by Club C during the loan period for which he is available for selection then Club C shall pay to Club A an additional fee of €500,000 on 31 May 2016. The Player will be deemed unavailable for selection if he is injured, suffers illness or is suspended from participation in such games and such games shall not be included in the calculation above. 2 substitute appearances of 45 minutes or more will be considered as 1 start for the purposes of the calculation above. Club C shall provide Club A with a record of the Player’s participation in League of Country D and UEFA Europa League games on a monthly basis and evidence of any reason for which the Player has been deemed unavailable for selection which in the case of injury or illness must be approved by the Club Doctor of Club A to be valid” (hereinafter referred to as: conditional loan fee).

4. Clause 9 of the loan agreement reads as follows:

“In the event that the Player starts more than 75% of the League of Country D and UEFA Europa League matches played by Club C during the Loan Period for which he is available for selection then the Loan Fee due on 31 May 2016 shall be reduced by €250,000. The Player will be deemed unavailable for selection if he is injured, suffers illness or is suspended from participation in such games and such games shall not be included in the calculation above. 2 substitute appearances of 45 minutes or more will be considered as 1 start for the purposes of the calculation above. Club C shall provide Club A with a record of the Player’s participation in League of Country D and UEFA Europa League games on a monthly basis and evidence of any reason for which the Player has been deemed unavailable for selection which in the case of injury or illness must be approved by the Club Doctor of Club A to be valid”.

5. On 2 March 2017, Club A lodged a claim before FIFA against Club C requesting, after amending its claim on 14 August 2017, the following:

a. to declare that Club C has breached the loan agreement;

b. to declare that Club C owes Club A the sum of EUR 349,500, plus 5% interest p.a. from 31 May 2016 until the date of effective payment;

c. to declare that Club C shall bear the procedural costs; and

d. to declare that Club C shall bear “all, or at least contribute to the costs incurred by it in bringing these proceedings”.

6. In this context, Club A acknowledged receipt of the loan fee as well as of an overpayment of EUR 150,500 in relation to non-deduction of the solidarity contribution, but argued that, since the player did not start for Club C in at least 70% of the matches he was available for, the conditional loan fee fell due as per clause 8 of the loan agreement.

7. In particular, Club A stated that during the loan period Club C played 31 Super League matches as well as 10 Europa League matches and that the player was injured and/or suspended for 23 matches. Consequently, Club A held that the player was available to play 18 matches. Club A asserted that the player made the following appearances: 14 in the Super League, of which 10 starts and 4 substitutes of 28, 9, 4 and 70 minutes respectively, and 2 in the UEFA Europa League (hereinafter: UEL), in both of which the player started.

8. In light of the foregoing, Club A assessed that, for the purposes of the calculation of the conditional loan fee under clause 8 of the loan agreement, the player made 12 starts, since the player only appeared as a substitute for more than 45 minutes in 1 match, which represents 66.66% of the matches for which he was available for selection.

9. Furthermore, Club A submitted a copy of the parties’ exchange of correspondence between 12 July 2016 and 19 December 2016 and held that it unsuccessfully tried to solve the present matter amicably.

10. In this context, Club A argued that Club C’s interpretation of clause 8 of the loan agreement is flawed as it counts each substitute appearance as half an appearance for the purpose of the calculation of the number of starts. Similarly, Club A stated that even with such interpretation, the player only started in 69.44% of the matches for which he was available and that, therefore, the conditional loan fee is still due since the player did not meet the 70% threshold of starts during the loan period.

11. Club C, for its part, rejected Club A’s claim by stating that “the debt is not overdue on a prima facie basis and as a result the relief sought via article 12bis of the [FIFA

Regulations on the Status and Transfer of Players] is not applicable in this case”. Club C further stated that the player played the threshold number of matches and that, therefore, Club C does not owe the conditional loan fee to Club A.

12. In this context, Club C acknowledged that the player appeared in 12 matches as defined in the loan agreement. However, according to Club C, the player was only available to play in 16 matches, this is, in 2 UEL matches and in 14 matches of the Super League, and that he was unavailable for the remainder of the matches, as he was either under suspension or injured, including on 21 November 2015 in the match against Club G and on 26 November 2015 in the match against Club H, although he appeared in the official list of 18 players for these 2 matches. In this regard, Club C submitted mass media reports, according to which:

UEL Super League Club C played during the loan period

10 matches

31 matches The player played

2 matches as starter

10 matches as starter and 4 as a substitute The player was injured

5 matches

16 matches The player was suspended

2 matches

0 matches The player was on the bench

1 match

1 match

13. In this respect, Club C submitted a copy of its email addressed to Club A on 28 September 2015, by means of which Club C provided Club A with diagnostic images concerning an alleged recurring injury to the player’s hamstring.

14. Equally, Club C asserted that the player was injured during a whole month as from 29 October 2015, i.e. the day on which he suffered a specific injury according to Club C, until he played again on 30 November 2015. Club C further held that an MRI was performed on the player on 30 October 2015, the results of which it communicated to Club A on 31 October 2015.

15. Club C further stated that, as a result of the said injury, the player was left out of the list of registered players for two matches on 5 and 8 November 2015 and that Club C “intentionally chose to make him unavailable for [the match to be held on 21 November 2015], even though he was in the [list of registered players]” in order to complete the lists, since he was continuing his physical therapy and was “unavailable” to play.

16. In this context, Club C underscored that, according to the loan agreement, “the player will be deemed unavailable for selection if he is injured” and asserted that the fact that he was included in the list of registered players for the matches on 21 and 26 November 2015 is irrelevant. Similarly, Club C pointed out that the wording of the loan agreement specifically deems the player unavailable in case of injury and recalled that the player was injured as from 29 October 2015 until 30 November 2015, this is, “unavailable” during that period. In light of the foregoing,

Club C concluded that the total number of matches for which the player was available is 16, and not 18 as sustained by Club A.

17. Following the aforementioned, Club C, on 27 April 2017, lodged a counterclaim against Club A before FIFA requesting:

a. the payment of EUR 250,000 in accordance with clause 9 of the loan agreement;

b. the reimbursement of the amount of EUR 150,500 that Club A has “incorrectly withheld”;

c. the payment of CHF 10,000 as Club C’s legal fees and costs; and

d. to order Club A to assume the entirety of the administration and procedural fees.

18. In particular, Club C argued that the player was available to play for 2 UEL matches as well as for 14 matches of the Super League, that it is undisputed that he played 12 matches and that his inclusion in the list of registered players is irrelevant. Consequently, Club C is of the opinion that the player played in 75% of the matches for which he was available and that, therefore, the amount of EUR 250,000 is payable by Club A to Club C in accordance with clause 9 of the loan agreement.

19. Likewise, Club C held that Club A is withholding the overpayment of EUR 150,500 to offset the conditional loan fee, but that actually Club A owes Club C the amount of EUR 250,000. As a result, and hereby referring to clause 7 of the loan agreement, according to which the amounts related to solidarity contribution and training compensation shall be deducted from the loan fee, Club C asserted that the amount of EUR 150,500 that it paid in excess must be reimbursed.

20. Club A, for its part, pointed out that it is a paradox that Club C argues that the player was unavailable for selection for the two matches for which he was included in the list of registered players and that if Club C’s only reason to include him in said lists was to fill them, it could have selected other players who were not injured.

21. In this respect, Club A held that the 2 matches for which the player was included in the list of registered players while allegedly being injured were played away from Club C’s home ground. As a result, Club A asserted that it is simply not credible that Club C did not consider the player available to play and still made him travel to the city of Club G and to Country F.

22. Furthermore, Club A assessed that, under the UEL rules, there is no obligation to fill a substitutes bench.

23. Moreover, Club A stated that it is a widely accepted position within football that when a player is selected within a match day squad he is in fact available to play, particularly as there is no other reason for a player to be present on the bench. In this regard, Club A referred as an illustrative example to The Football Association’s Governing Body Endorsement Requirements for Players, which allegedly states that when considering a player’s appearance record a player selected in a match day squad is deemed to be fit and available for selection.

24. In addition, Club A rejected Club C’s argument that the player was injured during a whole month. In particular, Club A is of the opinion that Club C failed to produce any conclusive medical evidence demonstrating that the player was injured at the time of the relevant matches. In this respect, Club A argued that Club C relied on the test results dated 30 October 2015, this is, three weeks before the matches. In this regard, Club A submitted a copy of Club C’s 1st team physiotherapist’s email dated 16 November 2015, who informed Club A that the player “does not have any problems about his injury but we did an isokinetic test to him on 12.11.2015. According to that test we planned a strengthening program and also running program for him. If everything goes as we planned he will train with the team on 18.11.2015”, and held that Club C did not inform it of any details or issues or reoccurrence of the injury of the player.

25. Similarly, Club A recalled that according to the terms of the loan agreement, any illness or injury resulting in the player being unable for selection “must be approved by the Club A Club Doctor to be valid”, thus, in Club A’s opinion, the determination of whether or not the player was available was subject to approval from its medical staff. In light of the foregoing, in the absence of any such approval and in accordance with the loan agreement, Club A argued that the player must be considered to have been available for selection. In this respect, Club A stated that by failing to seek its confirmation as required under the loan agreement, Club C denied Club A the opportunity to investigate and verify the player’s medical condition. Consequently, Club A submitted that Club C should not be entitled to take advantage of its own breach to adjust the calculation of the player’s availability record to avoid payment.

26. Equally, Club A underscored that, under the loan agreement, Club C was obliged to provide monthly reports in respect of the matches played by the player for which he was available, but failed to do so.

27. Lastly, Club A rejected Club C’s request to reimburse EUR 150,500 on the basis that it will offset said amount with the amount it is entitled to in accordance with clause 8 of the loan agreement and reiterated its request to receive EUR 349,500 as per the aforementioned clause.

28. In its final comments, Club C reiterated its previous arguments and request and highlighted that being included in the list of registered players is not a requirement to be considered “available” under the transfer agreement.

29. As to the alleged lack of notification of the player’s injury, Club C referred to its emails dated 28 September 2015 and “30” October 2015 and held that it notified Club A of the tests results.

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

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge) analysed which edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber is applicable to the matter at hand. In this respect, he referred to art. 21 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018) as well as to the fact that the present matter was submitted to FIFA on 2 March 2017. Consequently, the Single Judge concluded that the 2017 edition of the said Procedural Rules is applicable to the matter at hand (hereinafter: Procedural Rules).

2. Subsequently, 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. 4 as well as art. 22 lit. f) of the 2018 edition of the Regulations on the Status and Transfer of Players, he is competent to deal with the matter at stake since it concerns a dispute between two clubs affiliated to different associations.

3. In continuation, 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 to art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2018) and to the fact that the present matter was submitted to FIFA on 2 March 2017. In view of the foregoing, the Single Judge concluded that the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable in the matter at hand as to the substance.

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 above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge emphasized 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 and foremost, the Single Judge acknowledged that, on 28 August 2015, Club A and Club C signed an agreement over the loan transfer of the player to Club C as from 31 August 2015 until 31 May 2016, in accordance with which the parties agreed, inter alia, that the loan fee would be increased or decreased depending on the fulfilment of specific conditions set out in clause 8 and clause 9 of the loan agreement, respectively.

6. The Single Judge took into account that according to Club A the condition set out in clause 8 of the loan agreement was fulfilled, in that the player was available for

18 matches and made 12 starts. Therefore, Club A maintained that it is entitled to receive the additional amount of EUR 500,000 from Club C, from which amount Club A deducted the amount of EUR 150,500, which it acknowledged having received from Club C in excess of the loan fee due to the non-deduction of the solidarity contribution.

7. Furthermore, the Single Judge noted that Club C, for its part, rejected the claim and held that, whereas he made 12 starts, the player was only available to play in 16 matches. As a result, Club C maintained that the condition set out in clause 9 of the loan agreement was fulfilled and, therefore, asked that Club A be instructed to pay, inter alia, the amount of EUR 250,000 and reimburse the EUR 150,500 that it paid to Club A in excess of the latter’s entitlements.

8. Having said that, the Single Judge recalled the wording of clauses 8 and 9 of the loan agreement, which read, respectively:

9. “In the event that the Player does not start for Club C in at least 70% of the League of Country D and UEFA Europa League matches played by Club C during the loan period for which he is available for selection then Club C shall pay to Club A an additional fee of €500,000 on 31 May 2016. The Player will be deemed unavailable for selection if he is injured, suffers illness or is suspended from participation in such games and such games shall not be included in the calculation above. 2 substitute appearances of 45 minutes or more will be considered as 1 start for the purposes of the calculation above. Club C shall provide Club A with a record of the Player’s participation in League of Country D and UEFA Europa League games on a monthly basis and evidence of any reason for which the Player has been deemed unavailable for selection which in the case of injury or illness must be approved by the Club Doctor of Club A to be valid.” (cf. clause 8) and,

10. “In the event that the Player starts more than 75% of the League of Country D and UEFA Europa League matches played by Club C during the Loan Period for which he is available for selection then the Loan Fee due on 31 May 2016 shall be reduced by €250,000. The Player will be deemed unavailable for selection if he is injured, suffers illness or is suspended from participation in such games and such games shall not be included in the calculation above. 2 substitute appearances of 45 minutes or more will be considered as 1 start for the purposes of the calculation above. Club C shall provide Club A with a record of the Player’s participation in League of Country D and UEFA Europa League games on a monthly basis and evidence of any reason for which the Player has been deemed unavailable for selection which in the case of injury or illness must be approved by the Club A Club Doctor to be valid.” (cf. clause 9).

11. In light of the parties’ conflicting position in this respect, the Single Judge concluded that the main issue in the matter at stake is to determine the number of matches for which the player was available for selection and to decide on the consequences thereof, bearing in mind the parties’ respective requests.

12. In continuation, the Single Judge underscored that the parties’ different count of the number of matches for which the player was available for selection stems from the 2 matches played by Club C on 21 and 26 November 2015. According to Club C, the player was not available to play as from 29 October 2015 until 30 November 2015, in particular also for the said 2 matches, due to his injury, highlighting that according to the loan agreement, “the player will be deemed unavailable for selection if he is injured”. Furthermore, Club C held that in light of such contractual stipulation the fact that the player was included in the list of 18 registered players for these 2 matches is not relevant.

13. Club A, for its part, rejected such line of argumentation and deemed that by including the player in the list of 18 registered players for the said 2 matches, the player was in fact available to play. Club A further held that if the purpose of including the player in the list of 18 players for these 2 matches was to complete the relevant player lists, Club C could have chosen another, non-injured, player.

14. As regards the player’s injury, Club A held that Club C failed to provide conclusive medical evidence demonstrating that the player was injured during a full month and, in particular, during the above-mentioned 2 matches on 21 and 26 November 2015. In this respect, the Single Judge took note of the email dated 16 November 2015 that Club A received from Club C’s 1st team physiotherapist, by means of which the latter informed Club A, inter alia, that the player had no problem regarding his injury. According to Club A, in accordance with the terms of the loan agreement, the determination of whether or not the player was available for selection was subject to approval from its medical staff and Club C had not provided any information regarding the injury of the player or sought confirmation by Club A’s medical staff in line with the contractual terms following its email of 16 November 2015.

15. Having reviewed the parties’ arguments, the Single Judge agreed with Club A’s line of argumentation and deemed that by including the player in the list of 18 players for the matches of 21 and 26 November 2015, Club C in fact demonstrated that the player was available for selection.

16. What is more, the Single Judge took into account that, on 16 November 2015, i.e. a few days before the match of 21 November 2015, Club C provided Club A with information, from which it could not be concluded that the player would not be available for selection for the matches of 21 and 26 November 2015. The Single Judge recalled that in accordance with the ultimate sentence of clauses 8 and 9 of the loan agreement, Club C was obliged to provide Club A with evidence of any reason for which the player was deemed unavailable for selection, which in the case of injury or illness had to be approved by Club A’s medical staff to be valid. Furthermore, the Single Judge noted that whereas Club C maintained that the player was not available for these 2 matches due to his injury, Club C has presented no documentation demonstrating that, after its email of 16 November 2015, it sought confirmation from Club A’s medical staff that the player was not available for selection for the said 2 matches.

17. With respect to Club C’s argument that it informed Club A of the player’s injury and provided the latter with relevant evidence on 28 September 2015 and 30 October 2015, the Single Judge considered that such documentation, if to be considered sufficient evidence demonstrating the medical situation of the player at that specific moment in time, was superseded by the information regarding the player’s injury provided by Club C to Club A on 16 November 2015 and the further lack of information to or communication with Club A thereafter.

18. Having said that, the Single Judge concluded that in accordance with the terms of the loan agreement the player was available for selection for the matches played by Club C on 21 and 26 November 2015 and that, consequently, the player was available for selection for a total of 18 matches of the League of Country D and UEFA Europa League during the loan period.

19. In continuation, the Single Judge took into account that it has remained undisputed that the player started for Club C in 12 matches of the League of Country D and UEFA Europa League during the loan period.

20. On account of the above, the Single Judge established that the player started for Club C in 66.66% of the League of Country D and UEFA Europa League matches during the loan period for which he was available for selection.

21. Consequently, the Single Judge determined that, in accordance with clause 8 of the loan agreement, the additional fee of EUR 500,000 fell due on 31 May 2016 and must be paid by Club C to Club A.

22. Subsequently, the Single Judge recalled that Club A asked to be awarded the amount of EUR 349,500, taking into consideration that it had received from Club C EUR 150,500 in excess of the loan fee due to non-deduction of the solidarity contribution.

23. On account of all of the above, the Single Judge decided that Club C must pay the amount of EUR 349,500 to Club A.

24. In addition, bearing in mind Club A’s request relating to payment of interest, the Single Judge decided that Club C must pay 5% interest p.a. as of the day following the day on which the payment fell due, i.e. 1 June 2016, until the date of effective payment.

25. Moreover, the Single Judge rejected Club A’s request that Club C contribute to the costs it incurred in bringing these proceedings in accordance with art. 18 par. 4 of the Procedural Rules and the respective longstanding jurisprudence of the Players’ Status Committee in this regard.

26. The Single Judge concluded his deliberations on the present matter by fully rejecting the counterclaim of Club C and any further claim of Club A.

27. 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. It is further stipulated that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

28. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 439,500 related to the claim of Club A. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe A of the Procedural Rules).

29. As a result, considering the particularities of the present matter as well as the parties’ degree of success, the Single Judge determined the final costs of the current proceedings to the amount of CHF 22,000, which shall be borne by Club C.

****

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

1. The claim of the Claimant/Counter-Respondent, Club A, is partially accepted.

2. The counterclaim of the Respondent/Counter-Claimant, Club C, is rejected.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, the amount of EUR 349,500, plus 5% interest p.a. as from 1 June 2016 until the date of effective payment.

4. If the aforementioned sum and interest are 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.

5. Any further claim lodged by the Claimant/Counter-Respondent is rejected.

6. The final amount of costs of the proceedings of CHF 22,000 is to paid by the Respondent/Counter-Claimant, within 30 days of notification of the present decision, as follows, taking into consideration that the Respondent/Counter-Claimant already paid CHF 5,000 as an advance of costs:

6.1 The amount of CHF 12,000 to FIFA to the following bank account with reference to case no. XXXXXXX/XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6.2 The amount of CHF 5,000 to the Claimant.

7. The Claimant/Counter-Respondent is directed to inform the Respondent/Counter-Claimant immediately and directly of the account number to which the remittances under points 3. and 6.2 above are to be made and to notify 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:

Emilio García Silvero

Chief Legal Officer

Encl. CAS directives