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/Counter-Respondent

against the club,

Club C, Country D

as Respondent/Counter-Claimant

regarding a contractual dispute between the

parties relating to the player Player E

I. Facts of the case

1. On 28 July 2016, the Club of Country B, Club A (hereinafter: the Claimant/Counter-Respondent), and the Club of Country D, Club C (hereinafter: the Respondent/Counter-Claimant), concluded an agreement for the transfer of the player, Player E (hereinafter: the player), from the Claimant/Counter-Respondent to the Respondent/Counter-Claimant (hereinafter: the transfer agreement).

2. Recitals of the transfer agreement stipulated, inter alia, the following:

“B. [The Respondent/Counter-Claimant] wishes to get the definitive transfer of the player registration (Federative Rights);

C. [The Claimant/Counter-Respondent] and [the Respondent/Counter-Claimant] agree that the previous declarations are, all and separately each one of them, essential for the will of settling and drawing up this agreement”.

3. Clause 2 par. 1 of the transfer agreement reads as follows:

“(…) [The Respondent/Counter-Claimant] shall pay to [the Claimant/Counter-Respondent] for his federative rights and the eighty-five percent (85%) of player’s economic rights the net amount of € 10.000.000 (ten million Euros net) [payable as follows]:

a. € 1.000.000 (one million thousand Euros net) to be paid within seven (7) days after the signing date (…).

b. € 2.500.000 (two million five hundred thousand Euros net) to be paid before the 23rd of August, 2016 (…)

c. € 3.500.000 (three million five hundred thousand Euros net) to be paid by the 15th of September, 2017; and

d. € 3.000.000 (three million Euros net) to be paid by the 15th of February, 2018”.

4. Clause 2 par. 2 of the transfer agreement stipulates the following:

“In the event that the Player’s registration shall be further transferred by [the Respondent/Counter-Claimant] to any third club prior to the payment of the sums due above then [the Respondent/Counter-Claimant] shall be required to notify [the Claimant/Counter-Respondent] in writing and all outstanding instalments shall become immediately due and payable to [the Claimant/Counter-Respondent] within seven (7) days of the date on which the Player ceases to be registered with [the Respondent/Counter-Claimant], notwithstanding any other clause related to a sell-on fee as to a further player’s transfer to a third club” (hereinafter: the acceleration clause).

5. Clause 3 par. 1 of the transfer agreement reads as follows:

“In the event the Player is transferred by [the Respondent/Counter-Claimant] to a third club before the 1st of September, 2018 (either agreeing a transfer fee or by payment of the buy-out clause by a third club), [the Claimant/Counter-Respondent] shall receive from [the Respondent/Counter-Claimant] the higher net compensation of:

(i) € 2.000.000 (two million Euros net), or

(ii) 15% of the total net transfer fee agreed between the clubs by way of a sell-on fee, whatever the referenced amount is.

This shall be paid within 10 (ten) days after the federative effectiveness of the transfer of the Player to the third club” (hereinafter: the sell-on fee).

6. Clause 4 par. 1 of the transfer agreement stipulates the following:

“[The Respondent/Counter-Claimant] will pay a fixed net amount of € 500.000 (five hundred thousand Euros net), as soon as the Player has scored 12 (twelve) goals in official matches with the first team, throughout the recently signed labour contract and any future labour contract extension (i.e. as long as the player is federatively registered with [the Respondent/Counter-Claimant] when the condition is occurred). This amount will be paid within 30 (thirty days) after the triggering fact has taken place” (hereinafter: the conditional transfer fee).

7. Clause 7 par. 4 of the transfer agreement reads as follows:

“[The Respondent/Counter-Claimant] will pay interest to [the Claimant/Counter-Respondent] at a rate of 10% (ten per cent) per annum upon any amounts due to [the Claimant/Counter-Respondent] under this Agreement which are not paid by [the Respondent/Counter-Claimant] in full by their due date”.

8. Clause 13 par. 1 of the transfer agreement stipulates the following:

“This agreement shall be governed by FIFA Regulations and Law of Country B, and the settlement of any dispute between the parties to this agreement shall be subject to the FIFA Regulations and Law of Country B”.

9. According to the information contained in the Transfer Matching System (TMS), on 20 August 2017, the player was transferred from the Respondent/Counter-Claimant to the Club of Country F, Club G (hereinafter: Club G), against a transfer compensation of EUR 9,473,684 “of which € 9.000.000 to be paid to [the Respondent/Counter-Claimant] and 473.684 to be deducted as solidarity contributions” (hereinafter: the subsequent transfer compensation). Equally, according to the information in the TMS, on 20 August 2017, the player was de-registered from the Respondent/Counter-Claimant and on 24 August 2017 he was registered with Club G.

10. On 9 November 2017, the Claimant/Counter-Respondent lodged a claim before FIFA against the Respondent/Counter-Claimant requesting, after amending its claim on 6 April 2018, the following:

- EUR 6,500,000, as the third and fourth instalments of the transfer compensation, plus 10% interest p.a. as from 1 September 2017,

- EUR 2,000,000, as the sell-on fee in connection with the player’s subsequent transfer to Club G, plus 10% interest p.a. as from 4 September 2017,

- EUR 500,000, as the conditional transfer fee, plus 10% interest p.a. as from 7 September 2017,

- that sanctions be imposed on the Respondent/Counter-Claimant, and

- that the Respondent/Counter-Claimant bear “the legal costs and all other expenses, including, without limitation the advance of costs of these proceedings”.

11. In this context, the Claimant/Counter-Respondent submitted an excerpt from TMS containing the player’s details created by the Football Federation of Country F (Football Federation H) on 24 August 2017 and held that the player was subsequently transferred from the Respondent/Counter-Claimant to Club G for an alleged subsequent transfer compensation of EUR 9,000,000. As a result, the Claimant/Counter-Respondent referred to clauses 2 par. 2 and 3 par. 1 of the transfer agreement and argued that the third and fourth instalments as well as the sell-on fee have fallen due and remain outstanding.

12. Equally, the Claimant/Counter-Respondent submitted an internet report, according to which the player scored 15 goals for the Respondent/Counter-Claimant, and stated that the conditional transfer fee fell due on 6 September 2017 since the player scored 13 goals in official matches, the 12th goal having been scored on 6 August 2017.

13. The Respondent/Counter-Claimant rejected the Claimant/Counter-Respondent’s claim by stating that it has never concluded the transfer agreement since the person who signed it on its behalf was not in position to do so. As a result, on 15 January 2018, the Respondent/Counter-Claimant lodged a counterclaim against the Claimant/Counter-Respondent requesting the reimbursement of the transfer compensation in the amount of EUR 3,500,000.

14. In this respect, the Respondent/Counter-Claimant referred to art. 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and argued that the Player’s Status Committee shall apply the FIFA Statutes and regulations whilst taking into account all relevant arrangements, laws and/or collective bargaining agreements that exist at national level, as well as the specificity of sport. Equally, the Respondent/Counter-Claimant referred to art. 154 (1) of the Swiss Federal Act on Private International Law (hereinafter: PILA), according to which “companies shall be governed by the law of the state under whose law they are organized”, and held that lex societatis governs, inter alia, the power of representation of the person acting on behalf of the company. As a result, the Respondent/Counter-Claimant deemed that the present matter shall be decided on the basis of the FIFA Regulations on the Status and Transfer of Players as well as Law of Country D.

15. In this context, the Respondent/Counter-Claimant argued that the transfer agreement was signed by its CEO, Mr J, who allegedly was on holidays “from 27 June 2016 to 22 July 2016”, dates that the Respondent/Counter-Claimant later on changed to include the date of signature of the transfer agreement. In this respect, the Respondent/Counter-Claimant stated that, pursuant to Law of Country D and the jurisprudence of various Courts in Country D, excerpts of which were presented, its CEO was not in a position to perform his employment duties, which were temporarily delegated to Mr K. As a result, the Respondent/Counter-Claimant concluded that Mr J had no right to sign the transfer agreement on its behalf.

16. In this respect, the Respondent/Counter-Claimant submitted that, according to Law of Country D and the jurisprudence of the Supreme Court of Country D, when a deal has been concluded on behalf of a third person by a representative that did not have the relevant power, the transaction shall be considered as made on behalf and in the interest of the person who made it, unless the represented party subsequently approves the deal. In this respect, the Respondent/Counter-Claimant alleged that it has never approved the transfer agreement, resulting in the invalidity of the transfer agreement. In light of the foregoing, the Respondent/Counter-Claimant concluded that it never entered into the transfer agreement and that, therefore, it does not oblige the Respondent/Counter-Claimant.

17. Furthermore, the Respondent/Counter-Claimant stated that the transfer agreement is void alleging that it does not meet the legal requirements as, according to its Statutes and Law of Country D, the transfer of players require the consent of the Respondent/Counter-Claimant’s three management bodies. In this respect, the Respondent/Counter-Claimant argued that in the present matter only its CEO expressed his consent.

18. Similarly, the Respondent/Counter-Claimant submitted a copy of its “assets and liabilities statement for a public (municipal) institution as of 1 January 2016”, according to which the balance of its assets amounted to 821,636,472.83, and explained that major transactions shall be first approved by the supervisory board. The Respondent/Counter-Claimant added that the present transfer represents 88% of its book value assets and, therefore, was a breach of the Respondent/Counter-Claimant’s transfer policy.

19. Equally, the Respondent/Counter-Claimant an excerpt of its statutes, the free translation into English of which reads as follows: “the President determines the main directions and priorities of the selection work, negotiates and carries out the transfer agreements”, and stated that, pursuant to its Statutes, its president is the body responsible of, inter alia, the negotiation and conclusion of transfer agreements, without prejudice to the CEO’s authority to sign such agreements as the head of the legal entity. As a result, the Respondent/Counter-Claimant concluded that transfer agreements shall be signed by both the president and the CEO on behalf of the Respondent/Counter-Claimant and that the absence of the president’s signature evidences the lack of his consent, resulting in the invalidity of the transfer agreement.

20. Furthermore, the Respondent/Counter-Claimant stated that the consequences of the lack of conclusion of the transfer agreement or its invalidity are that the transfer compensation already paid shall be reimbursed in order to avoid unjust enrichment by Claimant/Counter-Respondent.

21. Notwithstanding the foregoing, the Respondent/Counter-Claimant referred to jurisprudence of the Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS) and submitted that the employment contract it entered into with the player is valid and produces independent legal effects other than the transfer agreement since i) it is a different contract, ii) its object is different and iii) the contracting parties are different. As a result, the Respondent/Counter-Claimant concluded that, contrary to the transfer agreement, the player’s employment contract was valid and that all the rights and duties of the parties thereof were legally binding.

22. The Claimant/Counter-Respondent rejected the Respondent/Counter-Claimant’s counterclaim by stating that the latter’s allegations that the transfer agreement is void and that the payment of the first and second instalments of the transfer fee results in the Claimant/Counter-Respondent’s unjust enrichment is a dilatory and malicious tactic to prevent the imposition of sanctions and to delay the payment.

23. In this respect, the Claimant/Counter-Respondent pointed out that only after receiving its claim did the Respondent/Counter-Claimant invoke the invalidity of the transfer agreement. In this context, the Claimant/Counter-Respondent recalled that the transfer agreement was signed in July 2016, that it was duly executed by both parties and that the Respondent/Counter-Claimant subsequently transferred the player to Club G in August 2017 for a transfer compensation of EUR 9,000,000.

24. Furthermore, the Claimant/Counter-Respondent argued that the Respondent/Counter-Claimant’s position lacks consistency as to the applicability of Law of Country D since it is intending to apply Law of Country D on the basis of a Swiss national legislation such as the PILA. In particular, the Claimant/Counter-Respondent referred to art. 116 of the PILA as well as to jurisprudence of the DRC, the PSC and the CAS, and submitted that, when entering into an international transfer agreement with a foreign club, the law applicable to said agreement must necessarily be the one agreed upon by the parties thereof, which, in the present matter, consists of the FIFA Regulations, since it establishes legal basic principles that guarantee uniform and equal treatment of all participants in the international professional football world, and Law of Country B.

25. Moreover, the Claimant/Counter-Respondent stated that the Respondent/Counter-Claimant challenged the validity of the transfer agreement on the basis that its own internal procedures were not respected since the Respondent/Counter-Claimant’s CEO was allegedly on vacation and, therefore, under Law of Country D, could not represent the Respondent/Counter-Claimant. In this respect, the Claimant/Counter-Respondent pointed out that, according to the Respondent/Counter-Claimant’s own statement (cf. number I./15. above), its CEO was on holidays until 22 July 2016 but the transfer agreement was concluded on 28 July 2016.

26. Equally, the Claimant/Counter-Respondent referred to the Recitals B and C of the transfer agreement and stated that it remained undisputed that the parties involved had the intention to enter into the transfer agreement and made clear their understanding that the transfer agreement was properly signed by the legal representatives of both clubs as well as the player. As a result, the Claimant/Counter-Respondent stated that the signature of the Respondent/Counter-Claimant’s CEO evidences the Respondent/Counter-Claimant’s approval of the execution of the transfer agreement.

27. In this context, the Claimant/Counter-Respondent alleged that according to the jurisprudence of the DRC, a proxy rule unknown to third parties does not have legal effect on the validity of the contract itself unless the contracting partner is clearly informed about the respective rule, and stated that the Claimant/Counter-Respondent was not aware and cannot be expected to have been aware of i) the alleged illegal and/or restrictive exercise of the CEO’s power of attorney, ii) the need for the transfer agreement to have been approved by the Respondent/Counter-Claimant’s supervisory board and/or iii) the need for the transfer agreement to have been jointly executed by both the president and the CEO of the Respondent/Counter-Claimant.

28. Additionally, the Claimant/Counter-Respondent submitted that the Respondent/Counter-Claimant invoked the invalidity of the transfer agreement after having paid the first two contractual instalments of EUR 3,500,000 and performed several actions that validated the transfer, such as i) introducing the relevant information in TMS, ii) entering into an employment contract with the player and registering him before the Football Federation of Country D (Football Federation L), iii) confirming in its social media that the player has signed for the Respondent/Counter-Claimant, iv) exchanging emails with the Claimant/Counter-Respondent requesting a meeting with its managers to discuss some matters that exist between the two clubs, v) proposing that the Respondent/Counter-Claimant’s sponsor pays for the latter’s debt towards the Claimant/Counter-Respondent by concluding a sponsorship contract, vi) definitively transferring the player from the Respondent/Counter-Claimant to Club G and vii) acknowledging the debt towards the Claimant/Counter-Respondent by inviting it to “consider the possibility of transferring the transfer agreement of 28.07.2016 (…) to a new legal entity” and informing that the Respondent/Counter-Claimant is conducting an audit and that “[a]n integral part of the audit is the confirmation of the balance of the debt (before) your organization”. In support of its statements, the Claimant/Counter-Respondent submitted the following documentation:

- an excerpt from TMS, according to which the Football Federation L requested the player’s International Transfer Certificate (ITC) on 31 July 2016,

- a screenshot of the Respondent/Counter-Claimant’s tweet regarding the player’s registration with the Respondent/Counter-Claimant,

- a copy of the Respondent/Counter-Claimant’s email dated 14 September 2017, by means of which it requested a meeting with the Claimant/Counter-Respondent,

- a copy of the Respondent/Counter-Claimant’s email dated 30 October 2017 whereby it proposed to the Claimant/Counter-Respondent to conclude a sponsorship contract with the Respondent/Counter-Claimant’s sponsor,

- a copy of the Respondent/Counter-Claimant’s correspondence dated 13 February 2018, by means of which the Respondent/Counter-Claimant suggested the possibility of transferring the transfer agreement to a new legal entity, and

- a copy of the Respondent/Counter-Claimant’s correspondence dated 27 February 2018, by means of which the Respondent/Counter-Claimant requested the Claimant/Counter-Respondent to confirm the balance of the former’s debt towards the latter.

29. The Claimant/Counter-Respondent alleged that according to jurisprudence of the CAS “when the conduct of a party has led to raise legitimate expectations on the part of the second party, the first party is barred from changing its course of action to the detriment of the second party”, and according to Law of Country B “the agreement entered in the name of another person by someone who doesn’t hold the latter’s authorisation or representation will be rendered legally void, except in case it is ratified by the person in whose name it is granted prior to being revoked by the contracting counterparty”. The Claimant/Counter-Respondent pointed out that the Respondent/Counter-Claimant’s behaviour and acts clearly show that the Respondent/Counter-Claimant fully approved the execution of the transfer agreement and therefore, it shall produce all its corresponding legal effects.

30. Likewise, the Claimant/Counter-Respondent referred to the rules of good faith under Swiss law as well as to the exception to said rule of apparence qualifiée and argued that, considering Recitals B and C of the transfer agreement as well as the Respondent/Counter-Claimant’s behaviour after the conclusion of the transfer agreement, there are no doubts that the Respondent/Counter-Claimant was explicitly and evidently communicating to the Claimant/Counter-Respondent that the Respondent/Counter-Claimant’s representative was vested with the necessary powers to validly conclude the transfer agreement.

31. As to the Respondent/Counter-Claimant’s allegation that the Claimant/Counter-Respondent has to reimburse the first and second instalments of the transfer compensation in order to avoid unjust enrichment, the Claimant/Counter-Respondent referred to Swiss Law and Law of Country B as well as to the jurisprudence of the Supreme Court of Country B in this respect, and held that both parties freely and willingly concluded the transfer agreement and that the transfer compensation agreed upon was fairly and legally negotiated. Similarly, the Claimant/Counter-Respondent submitted that it satisfactorily complied with all its obligations under the transfer agreement, that the Respondent/Counter-Claimant’s obligation to pay the transfer compensation arises out of the transfer agreement and that, consequently, there is a reason for the payment.

32. In this regard, the Claimant/Counter-Respondent stressed that the Respondent/Counter-Claimant is “trying to obtain the best of both worlds” since it is trying to avoid its contractual obligations by invoking the nullity of the transfer agreement and, at the same time, it benefited from the player’s services and thereafter obtained a substantial economic benefit from the subsequent transfer of the player to Club G.

33. In its reply to the amended claim of the Claimant/Counter-Respondent, the Respondent/Counter-Claimant reiterated its previous arguments.

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 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 as well as to the fact that the present matter was submitted to FIFA on 9 November 2017. Consequently, the Single Judge concluded that the 2017 edition of the said procedural rules is applicable to the matter at hand (hereinafter: the 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. Furthermore, 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 9 November 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: the Regulations) is applicable to the case 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 continued 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. In particular, the Single Judge recalled that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. Having said that, the Single Judge acknowledged that the Claimant/Counter-Respondent lodged a claim against the Respondent/Counter-Claimant asking to be awarded, inter alia, the amount of EUR 6,500,000 on the basis of clause 2 par. 1 of the transfer agreement in conjunction with the contractual acceleration clause. In this respect, the Single Judge noted that the Claimant/Counter-Respondent had submitted a copy of the transfer agreement, signed by both parties.

6. In continuation, the Single Judge noted that the Respondent/Counter-Claimant, for its part, dismissed the claim, and lodged a counterclaim against the Claimant/Counter-Respondent, on the basis that the transfer agreement allegedly is void. The Single Judge acknowledged that the argumentation of the Respondent/Counter-Claimant in this respect can be summarised as follows:

a) the person that signed the transfer agreement on behalf of the Respondent/Counter-Claimant was not in a position to do so on the basis of Law and Jurisprudence of Country D;

b) the transfer agreement and the circumstances surrounding the signing of the transfer agreement do not meet the legal requirements under Law of Country D and the Respondent/Counter-Claimant’s statutes and transfer policy.

7. With regard to the Respondent/Counter-Claimant’s position that the present matter shall be decided in application of the FIFA Regulations on the Status and Transfer of Players as well as Law of Country D, the Single Judge highlighted that when deciding on a dispute before the Players’ Status Committee, FIFA’s regulations prevail over any national law chosen by the parties, which, in fact, in the present matter, was Law of Country B (cf. clause 13 par. 1 of the transfer agreement). Therefore, the Single Judge determined that the aforementioned FIFA Regulations, general principles of law and, where existing, the well-established jurisprudence of the Players’ Status Committee shall be applied when adjudicating the present matter.

8. On account of the above, the Single Judge considered that he first had to determine as to whether or not a valid and legally binding transfer agreement had been concluded between the Claimant/Counter-Respondent and the Respondent/Counter-Claimant for the transfer of the player.

9. In this respect, 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 respective burden of proof, and decided that, in casu, it was clearly the responsibility of the Respondent/Counter-Claimant to provide evidence in support of its allegations.

10. Having said that, first of all, the Single Judge took into account that it has remained undisputed that the transfer agreement was signed by the Respondent/Counter-Claimant’s CEO, Mr J. In this context, regardless of the consideration under number II./7. above and of whether the respective argument of the Respondent/Counter-Claimant can be considered valid, the Single Judge pointed out that the Respondent/Counter-Claimant had not provided any documentary evidence corroborating that its CEO, Mr J, was on holidays at the time he signed the transfer agreement. Consequently, the Single Judge considered that there was no need to examine the documents put forward by the Respondent/Counter-Claimant in respect of its assertion that the transfer agreement is invalid due to Mr J allegedly having been on holidays at the time of signature.

11. Likewise, the Single Judge observed that in accordance with the principle of bona fide, to be respected by the parties during the conclusion of contracts, the Claimant/Counter-Respondent was in good faith authorized to believe that the person signing the relevant agreement on behalf of the Respondent/Counter-Claimant was legally authorized to do so and was vested with the authority and powers needed to validly conclude the transfer agreement on behalf of the Respondent/Counter-Claimant. Equally, and in accordance with the aforementioned principle of burden of proof, the Single Judge outlined that the Respondent/Counter-Claimant had not provided documentary evidence demonstrating that, at the moment of signing the transfer agreement, the Claimant/Counter-Respondent was aware of the fact that Respondent/Counter-Claimant’s CEO, Mr J, supposedly did not meet the legal requirements under the Respondent/Counter-Claimant’s statutes and Law of Country D or that the transfer agreement would breach the Respondent/Counter-Claimant’s transfer policy.

12. Furthermore, the Single Judge referred to art. 2 par. 4 of Annexe 3 of the Regulations, pursuant to which, in case of an international transfer where a transfer agreement exists, the clubs involved must, independently of each other, submit information and, where applicable, upload certain documents relating to the transfer into TMS once the agreement has been formed. According to art. 8.2 par. 1 of Annexe 3 of the Regulations, depending on the selected instruction type, a copy of the transfer agreement concluded between the new club and the former club, if applicable, is one of the documents that must be uploaded in TMS. In this respect, the Single Judge observed that the Respondent/Counter-Claimant had entered into TMS a transfer instruction matching the Claimant/Counter-Respondent’s instruction “Release against payment” and that all relevant documents, including the transfer agreement, were uploaded as a result of which the International Transfer Certificate (ITC) for the player was issued.

13. Similarly, the Single Judge underscored that the Respondent/Counter-Claimant’s line of conduct, particularly taking into account that it paid the first and second instalments of the transfer compensation to the Claimant/Counter-Respondent as agreed upon in the transfer agreement and that it requested a meeting with the Claimant/Counter-Respondent and suggested that its sponsor could pay the debt towards the Claimant/Counter-Respondent by concluding a sponsorship contract with the Claimant/Counter-Respondent, was in clear contradiction of its position that the transfer agreement is void. Indeed, by these actions, the Respondent/Counter-Claimant clearly showed that it considered itself legally bound by the transfer agreement.

14. On account of the aforementioned considerations, the Single Judge had to reject the line of argumentation of the Respondent/Counter-Claimant and held that it was beyond doubt that the Claimant/Counter-Respondent and the Respondent/Counter-Claimant had concluded a valid and legally binding transfer agreement by means of which the player was transferred from the Claimant/Counter-Respondent to the Respondent/Counter-Claimant.

15. In addition, the Single Judge highlighted that, apart from contesting the validity of the transfer agreement, the Respondent/Counter-Claimant had not presented any other arguments on the basis of which it deemed that the claim of the Claimant/Counter-Respondent should be dismissed.

16. On account of the above considerations, the Single Judge decided to reject the counterclaim of the Respondent/Counter-Claimant.

17. Having established the above, the Single Judge held that, in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent/Counter-Claimant has to fulfill its contractual obligations towards the Claimant/Counter-Respondent.

18. In this context, the Single Judge observed that, according to the information submitted by the Claimant/Counter-Respondent as well as the information contained in the TMS, the player was de-registered from the Respondent/Counter-Claimant on 20 August 2017 and subsequently transferred from the Respondent/Counter-Claimant to Club G on 24 August 2017, this is, before the third and fourth instalments of the transfer compensation fell due.

19. In light of the foregoing, the Single Judge decided that the Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the amount of EUR 6,500,000 corresponding to the third and fourth instalments in accordance with clause 2 par. 1 lit. c. and lit. d. of the transfer agreement in combination with the acceleration clause.

20. In continuation, the Single Judge went on to examine as to whether the Claimant/Counter-Respondent is entitled to receive the sell-on fee in connection with the player’s subsequent transfer to Club G as requested by the Claimant/Counter-Respondent.

21. In this context, the Single Judge referred to the wording of clause 3 par. 1 of the transfer agreement and highlighted that the Respondent/Counter-Claimant undertook to pay either EUR 2,000,000 net or 15% of the total net future transfer compensation, whichever amount is higher, to the Claimant/Counter-Respondent if the player is transferred to a third club against payment before 1 September 2018.

22. In this regard, the Single Judge highlighted that the player was indeed transferred from the Respondent/Counter-Claimant to a third club, i.e. Club G, before 1 September 2018 against payment of a transfer compensation and that, therefore, the Claimant/Counter-Respondent is entitled to receive the sell-on fee.

23. Considering that the amount of EUR 2,000,000 is higher than 15% of the net transfer compensation agreed upon between the Respondent/Counter-Claimant and Club G, the Single Judge decided that the Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the additional amount of EUR 2,000,000 as per clause 3 par. 1 of the transfer agreement.

24. Moreover, the Single Judge examined as to whether the Claimant/Counter-Respondent’s request related to the conditional transfer fee in accordance with clause 4 par. 1 of the transfer agreement can be granted. According to the said clause 4 par. 1, the Respondent/Counter-Claimant undertook to pay the net amount of EUR 500,000 to the Claimant/Counter-Respondent if the player has scored 12 goals in official matches with the first team while being registered with the Respondent/Counter-Claimant.

25. In this context, the Single Judge took into account that according to the Claimant/Counter-Respondent, the player scored his 12th goal in official matches on 6 August 2017 and that in support of its position it submitted an internet report, according to which the player scored 15 goals for the Respondent/Counter-Claimant. The Single Judge highlighted that the Respondent/Counter-Claimant had not contested the statements of and the supporting documentation presented by the Claimant/Counter-Respondent in this regard.

26. Consequently, the Single Judge decided that the Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the conditional transfer fee of EUR 500,000 in accordance with clause 4 par. 1 of the transfer agreement.

27. In continuation, the Single Judge went on to examine the Claimant/Counter-Respondent’s request to be awarded interest of 10% p.a. on the aforementioned awarded amounts. In this respect, the Single Judge referred to clause 7 par. 4 of the transfer agreement as well as to the facts that, according to the acceleration clause, the remaining instalments of the transfer fee would fall due within seven days of the date of de-registration of the player with the Respondent/Counter-Claimant, the sell-on fee would fall due within 10 days after the transfer of the player to the third club, and the conditional transfer fee would fall due 30 days after the player has scored his 12th goal in official matches for the Respondent/Counter-Claimant.

28. On account of the above, bearing in mind the Claimant/Counter-Respondent’s claim and in accordance with clause 7 par. 4 of the transfer agreement, the Single Judge decided that the Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the contractually agreed 10% interest p.a. until the date of effective payment as follows:

- on the amount of EUR 6,500,000 as of 1 September 2017,

- on the amount of EUR 2,000,000 as of 4 September 2017, and

- on the amount of EUR 500,000, as of 7 September 2017.

29. Turning his attention to the Claimant/Counter-Respondent’s request that the Respondent/Counter-Claimant bear “the legal costs and all other expenses such as the advance of costs of these proceedings”, the Single Judge referred to art. 18 par. 4 of the Procedural Rules in accordance with which no procedural compensation shall be awarded in proceedings before the Players’ Status Committee. As a consequence, the Single Judge decided that this part of the Claimant/Counter-Respondent’s claim had to be rejected.

30. In conclusion, the Single Judge decided to partially accept the Claimant/Counter-Respondent’s claim and that the Respondent/Counter-Claimant is liable to pay to the Claimant/Counter-Respondent the total amount of EUR 9,000,000 plus 10% interest p.a. until the date of effective payment as follows:

- 10% p.a. on the amount of EUR 6,500,000, as from 1 September 2017;

- 10% p.a. on the amount of EUR 2,000,000, as from 4 September 2017; and

- 10% p.a. on the amount of EUR 500,000, as from 7 September 2017.

31. 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.

32. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 9,000,000 related to the claim of the Claimant/Counter-Respondent. 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).

33. 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 24,000, which shall be borne by the Respondent/Counter-Claimant.

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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 claim of the Respondent/Counter-Claimant, Club C, is rejected.

3. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent the amount of EUR 9,000,000 within 30 days as from the date of notification of this decision.

4. The Respondent/Counter-Claimant has to pay to the Claimant/Counter-Respondent, within 30 days as from the date of notification of this decision, 10% interest p.a. as follows:

- 10% p.a. over the amount of EUR 6,500,000, as of 1 September 2017 until the date of effective payment;

- 10% p.a. over the amount of EUR 2,000,000, as of 4 September 2017 until the date of effective payment; and

- 10% p.a. over the amount of EUR 500,000, as of 7 September 2017.

5. If the aforementioned sum and interest are not paid by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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

7. The final costs of the proceedings in the amount of CHF 24,000 are to be paid by the Respondent/Counter-Claimant, within 30 days of notification of the present decision, as follows:

7.1 The amount of CHF 19,000 by the Respondent/Counter-Claimant to FIFA. Given that the Respondent/Counter-Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the amount of CHF 14,000 has to be paid by the Respondent/Counter-Claimant to FIFA to the following bank account with reference to case no. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

7.2 The amount of CHF 5,000 by the Respondent/Counter-Claimant to the Claimant/Counter-Respondent.

8. 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., 4. and 7.2. 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

Encl. CAS directives