F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2019-2020) – fifa.com – atto non ufficiale – Decision 24 September 2019

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 24 September 2019,

by

José Luis Andrade (Portugal)

Single Judge of the Players’ Status Committee,

on the claim presented by the club

Horoya AC, Guinea

represented by Mr Luca Tettamanti

as Claimant

against the club

Hapoel Raanana FC, Israel

represented by Messrs Roi Rozen and Yuval Shadmi

as Respondent

regarding a contractual dispute arisen between the parties

and relating to the player Camara Mohamed Ali

I. Facts of the case

1. On 21 July 2017, the Guinean club Horoya AC (hereinafter: the Claimant) and the Israeli club Hapoel Raanana FC (hereinafter: the Respondent) concluded an agreement (hereinafter: the first transfer agreement) for the transfer of the player Camara Mohamed Ali (hereinafter: the player) from the Claimant to the Respondent.

2. Article 4.2 of the first transfer agreement provided that the Respondent purchased from the Claimant “100% of the federative and 85% of the economic and transfer rights over the player” for a transfer fee of USD 80,000.

3. In addition, art. 4.6 of the first transfer agreement foresaw that the Claimant “shall remain the owner of 15% of the economic rights regarding the Player in a way that in case of any future transfer made by [the Respondent] to another Club, [the Claimant] shall be entitled to receive 15% of the net consideration that [the Respondent] shall receive” (hereinafter: the sell-on fee). The same provision further specified that the payment of such sell-on fee “shall be made only after [the Respondent] shall actually receive the payment from [the Claimant]”.

4. On 3 July 2018, the Respondent and the Swiss club, BSC Young Boys (hereinafter: Young Boys), entered into an agreement regarding the transfer of the player to the latter (hereinafter: the second transfer agreement). The second transfer agreement stipulated, inter alia, that the player would be transferred against the payment of a transfer fee of EUR 2,000,000 “inclusive solidarity payments […] training compensations” to the Respondent and payable as follows:

a. EUR 950,000 on or before 31 July 2018; and

b. EUR 950,000 on or before 31 July 2019.

5. Furthermore, the second transfer agreement indicated that Young Boys would retain 5% of the transfer fee, i.e. EUR 100,000, in order to distribute solidarity contribution to the entitled clubs.

6. On 13 September 2018, the Claimant informed the Respondent in writing that, as a consequence of the player’s transfer to Young Boys, it was entitled to receive from it EUR 142,500 “with further EUR 142,500 becoming payable on 31 July 2019” and asked to be paid the first amount within 10 days.

7. On 25 September 2018, the Respondent replied that it was going to pay to the Claimant its entitlement “only after the full and final actual payment by Young Boys”. However, the Respondent informed the Claimant that it had estimated its entitlement in “approximately” EUR 190,000.

8. On 8 October 2018, the Claimant sent a further correspondence to the Respondent, claiming that “any payment to [it] is due pro-rata” and asking the Respondent to proceed with the payment of EUR 142,500 within 7 days.

9. On 9 November 2018, the Claimant reached out again to the Respondent, this time asking to be paid EUR 144,750 within 10 days. The Claimant justified the higher request explaining that, although the agreement between the Respondent and Young Boys expressly indicated 5% as solidarity contribution, Young Boys had, in the Claimant’s view, in reality a maximum amount of 3.5% to retain, due to the fact that the player “was about to start the season of his 21st birthday”.

10. On 23 November 2018, Young Boys sent an email to the Claimant, in which the Swiss club declared that “the payment of the second fix instalment has already been made” to the Respondent.

11. On 11 January 2019, the Claimant put the Respondent in default of the payment of EUR 270,750 plus 5% interest p.a., explaining that it had been informed by Young Boys that they had already paid the Respondent the entire transfer fee for EUR 1,900,000. In respect of its request, the Claimant clarified that the Respondent’s debt amounted to EUR 285,000 (i.e. 15% of EUR 1,900,000), but that it was “prepared to accept that 5% of this amount is retained and paid by [the Respondent] to the Player’s training clubs”.

12. On 15 January 2019, Young Boys informed the Claimant in writing that it had paid the transfer fee for the player to the Respondent as follows: (a) the first instalment on 31 July 2018 and (b) the second instalment on 28 September 2018.

13. Between 18 and 21 February 2019, the Claimant and the Respondent exchanged correspondences by means of which they, inter alia, argued on the amount that the latter owed to the former.

14. On 21 February 2019, the Claimant lodged a claim against the Respondent, requesting to be paid the amount of EUR 270,750, plus 5% interest p.a. as follows:

a. on the amount of EUR 135,735 as from 1 August 2018 until the date of effective payment; and

b. on the amount of EUR 135,735 as from 29 September 2018 until the date of effective payment.

15. The Claimant explained that the Respondent had received a “net transfer fee” of EUR 1,900,000 for the transfer of the player to Young Boys, thus triggering the sell-on fee enshrined in the first transfer agreement it had signed with the Claimant and entitling the latter to 15% of that amount.

16. The Claimant further pointed out that it remained undisputed that Young Boys had already paid the entirety of the transfer fee foreseen in the second transfer agreement in two instalments, dated respectively 31 July and 28 September 2018 and, therefore, calculated its entitlement in EUR 285,000. However, the Claimant asked the final amount of EUR 270,750 in light of the fact that the Respondent had to deduct 5% of solidarity contribution from EUR 285,000 to the clubs that trained the player.

17. In its reply to the claim, the Respondent acknowledged being in debt towards the Claimant, however only of the sum of EUR 190,923.

18. According to the Respondent, by virtue of 4.6 of the first transfer agreement, the Claimant was entitled to 15% of the net sum which the Respondent “will actual receive” from a subsequent transfer of the player.

19. In this respect, the Respondent pointed out that the “actual amount” it had received from Young Boys was EUR 1,272,822. That sums represented the final amount after the following deductions: a. USD 80,000 “equal to EUR 71,228” as the “transfer fee already paid to [the Claimant]”; b. EUR 541,700 as “agents fee” and c. EUR 14,250 as “early payment discount” to Young Boys.

20. The Respondent alleged that the parties intended the “net consideration” mentioned in art. 4.6 of the transfer agreement as the “final amount that the creditor would receive”.

21. In this regard, the Respondent added that, when the parties intended not to deduct any amount from a sum due to the Claimant they mentioned it explicitly as they did in art. 4.5 of the transfer agreement, whereby it is indicated that the Respondent “will not deduct any amount” from the transfer fee of USD 80,000.

22. In its replica, the Claimant entirely reiterated its initial request. In respect of the Respondent’s arguments, the Claimant explained that if the will of the parties was to deduct from the amount of the transfer compensation certain sums like agents fees, such deductions should have been clearly mentioned in the relevant agreement.

23. Moreover, the Claimant maintained that the Respondent had not provided any proof of any payments to agents incurred, which, in any case, appeared to be utterly disproportionate (around 30% of the transfer fee).

24. Finally, with regards to the alleged “early payment discount”, the Claimant pointed out that the document submitted by the Respondent did not prove that a reduced payment indeed occurred. Moreover, the Claimant highlighted that YB paid the relevant solidarity contribution towards other training clubs in relation to a transfer fee of EUR 2,000,000 and not EUR 1,885,750.

25. In its duplica, the Respondent entirely reiterated its position.

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 whether he was competent to deal with the matter at hand. In this respect, the Single Judge took note that the present matter was submitted to FIFA on 21 February 2019. Consequently, the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2018; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 par. 2 and par. 3 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 and par. 2 in conjunction with art. 22 lit. b) of the Regulations on the Status and Transfer of Players (edition June 2019), he is competent to deal with the matter at stake, which concerns a dispute with an international dimension opposing a Guinean club and an Isreali club.

3. Furthermore, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition June 2019), and considering that the present claim was lodged on 21 February 2019, the June 2018 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and documentation on file. However, the Single Judge emphasised that in the following considerations, he will refer only to the facts, arguments and documentary evidence which it 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. In this respect, the Single Judge acknowledged that on 21 July 2017, the Claimant and the Respondent agreed on the transfer of the player from the former to the latter and signed a transfer agreement in this regard.

6. In particular, the Single Judge noted that according to clause 4.2 of the first transfer agreement, the Respondent purchased from the Claimant “100% of the federative and 85% of the economic and transfer rights over the player” for a transfer fee of USD 80,000.

7. In addition, the Single Judge paid particular attention to clause 4.6 of the first transfer agreement, according to which the Claimant “shall remain the owner of 15% of the economic rights regarding the Player in a way that in case of any future transfer made by [the Respondent] to another Club, [the Claimant] shall be entitled to receive 15% of the net consideration that [the Respondent] shall receive”.

8. What is more, the Single Judge observed that clause 4.2 of the first transfer agreement specified that the payment triggered by the fulfillment of the aforementioned clause “shall be made only after [the Respondent] shall actually receive the payment from [the Claimant]”.

9. Then, the Single Judge noted that the player was subsequently transferred from the Respondent to Young Boys on 3 July 2018. In particular, the Single Judge acknowledged that said clubs entered into an agreement regarding the transfer of the player to the latter, and that this second transfer agreement stipulated, inter alia, that the player would be transferred against the payment of a transfer fee of EUR 2,000,000 “inclusive solidarity payments […] training compensations” to the Respondent and payable as follows:

a. EUR 950,000 on or before 31 July 2018; and

b. EUR 950,000 on or before 31 July 2019.

10. Additionally, the Single Judge acknowledged that the second transfer agreement indicated that Young Boys would retain 5% of the transfer fee, i.e. EUR 100,000, in order to distribute solidarity contribution to the entitled clubs.

11. In continuation, the Single Judge noted that the Claimant lodged a claim against the Respondent arguing that the sell-on fee set out in clause 4.2 of the first transfer agreement had been triggered by the transfer of the player from the respondent to Young Boys, and consequently requested the payment of EUR 270,750 plus interests as of the due dates, corresponding to the sell-on fee minus the 5% solidarity contribution due to the player’s former clubs.

12. In this this respect, the Claimant argued that that the Respondent had received a payment of EUR 1,900,000 representing the “net transfer fee” from Young Boys, and that it was entitled to receive 15% of said amount, and that it had received confirmation from Young Boys that the amount had been paid in full on 31 July and 28 September 2018.

13. The Single Judge also took note of the argumentation of the Respondent, and in particular that the Respondent acknowledged its debt towards the Claimant but however disputed the amount owed. In fact, the Single Judge acknowledged that the Respondent declared that it had only received the total amount of EUR 1,272,822 from Young Boys, after having deducted (a) EUR 71,228 as the value of the transfer fee that it had previously paid to the Claimant when buying the player, (b) 541,700 of intermediaries commissions paid in relation to the sale of the player to Young Boys and (c) EUR 14,250 that were deducted from the transfer fee paid by Young Boys in view of the fact the Swiss club paid the second instalment earlier that agreed in the second transfer agreement. The Single Judge noted that therefore, the Respondent maintained that its debt towards the Claimant amounted to EUR 190,923 only.

14. Having paid particular attention to the argumentation of the parties, the Single Judge first underlined that the parties did not contest the validity and the triggering of the sell-on fee clause, but rather argued on its interpretation.

15. What is more, the Single Judge duly noted that the Respondent did not contest that as of 23 September 2018, Young Boys had already paid the second instalment of the transfer fee in full.

16. The Single Judge observed that the Respondent understood that the sell-on fee was applicable to the “net” amount received by the Respondent from Young Boys, and sustained that a variety of costs had to be deducted from the EUR 1,900,000 that were contractually agreed by the Respondent and Young Boys within the second transfer agreement.

17. In this respect, the Single Judge noted that there are no provisions under the terms of the first transfer agreement, and in particular in clause 4.2 of said agreement, that would explicitly suggest that any agents and/or intermediaries fees and/or any previous transfer fee paid by the Respondent to the Claimant when acquiring the player that should be deducted from the sell-on fee.

18. Therefore, the Single Judge was of the opinion that such deductions suggested by the Respondent could not be taken into account when calculating the Claimant’s monetary entitlement as per the sell-on fee.

19. What is more, the Single Judge observed that the Respondent did not submit any evidence regarding the alleged “discount” on the second instalment of the transfer fee that would have been agreed with Young Boys.

20. Recalling the provisions set out in 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 burden of proof, the Single Judge decided that the alleged “discount” on the second transfer fee should not be taken into account.

21. In view of the above, the Single Judge deducted that, in principle, the sum to be taken into consideration as the basis of the calculation of the amount due to the Claimant shall be EUR 1,900,000, corresponding to the total transfer fee paid by Young Boys to the Respondent.

22. However, the Single Judge pointed out that according to art. 21 and Annexe 5 of the Regulations, 5% of any transfer fee paid shall be deducted as solidarity contribution and redistributed to the club(s) that participated in his training between the seasons of his 12th and 23rd birthday.

23. In this regard, the Single Judge paid particular attention to the terms of the second transfer agreement according to which Young Boys would deduct the sum of EUR 100,000 to the transfer fee of EUR 1,900,000 as solidarity contribution.

24. The Single judge, however, remarked that a deduction of 5% on the amount of EUR 1,900,000 would bring the transfer compensation paid by Young Boys to the Respondent to EUR 1,805,000, and was of the strong opinion that this amount should serve as the basis to calculate the sell-on fee, despite Young Boys and the Respondent agreeing on a different amount.

25. In light of the aforementioned, the Single Judge decided to accept the Claimant’s claim and held that the Respondent must pay to the Claimant the total amount of EUR 270,750, of which EUR 135,375 fell due on 1 August 2018 and EUR 135,375 fell due on 23 September 2018.

26. In addition, taking into account the Claimant’s request, the Single Judge decided that the Respondent must pay the Claimant interest of 5% p.a. as of the respective due dates of the aforementioned sums until the date of effective payment.

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 and which states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and are normally to be paid by the unsuccessful party.

28. Taking into account that the responsibility of the failure to comply with the payment of the sell-on fee can entirely be attributed to the Respondent and that the claim of the Claimant has been accepted, the Single Judge concluded that the Respondent has to bear the costs of the current proceedings before FIFA. 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 270,750. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

29. Considering the particular circumstances of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

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

1. The claim of the Claimant, Horoya AC, is accepted.

2. The Respondent, Hapoel Raanana FC, has to pay to the Claimant the amount of EUR 270,750, plus 5% interest p.a. as follows:

a. on the amount of EUR 135,735 as from 1 August 2018 until the date of effective payment;

b. on the amount of EUR 135,735 as from 29 September 2018 until the date of effective payment.

3. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2 above.

4. The Respondent shall provide evidence of payment of the due amount in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due plus interest in accordance with point 2 above is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

6. The ban mentioned in point 5 above will be lifted immediately and prior to its complete serving, once the due amount is paid.

7. In the event that the aforementioned sum plus interest is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

8. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent within 45 days as from the date of notification of the present decision as follows:

8.1 The amount of CHF 20,000 has to be paid to FIFA to the following bank account with reference to case no. 19-00478/ssp:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

8.2 The amount of CHF 5,000 has to be paid to the Claimant.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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 & Compliance Officer