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 5 May 2020
Decision of the Single Judge
of the Players’ Status Committee
passed on 5 May 2020,
by
Mr Stefano La Porta (Italy)
Single Judge of the Players’ Status Committee,
on the claim presented by the club,
Eintracht Frankfurt, Germany,
represented by Mr Joachim Rain
as Claimant
against the club,
Barcelona SC, Ecuador
as Respondent
regarding a contractual dispute arisen between the parties
and relating to the player Andersson Rafael Ordoñez Valdez
I. Facts of the case
1. On 15 December 2016, the German club, Eintracht Frankfurt (hereinafter: the Claimant
or Frankfurt) and the Ecuadorian club, Barcelona SC (hereinafter: the Respondent or
Barcelona SC) signed a transfer agreement for the definitive transfer of the Ecuadorian
player, Andersson Rafael Ordóñez Valdez (hereinafter: the player) from the latter to
the former.
2. According to the information contained in the Transfer Matching System (hereinafter:
the TMS), the player was registered with Frankfurt on 9 January 2017.
3. Pursuant to clause 5 of the transfer agreement, the Claimant and the Respondent
agreed upon the following: “It is expressly agreed between the Parties that the Fixed
Transfer Fee already comprised and included any training and educational allowances
(hereinafter referred to as “Training Compensation”) which may be due to BARCELONA
SC as a result of the Transfer, pursuant to Article 20 and Annex 4 of FIFA’s Regulations
for the Status and Transfer of Players (“FIFA’s Regulations”). Therefore BARCELONA SC
ensures by this Transfer Agreement that any claim to Training Compensation arising
from the aforesaid FIFA’s Regulations shall be considered as fully compensated by the
Fixed Transfer Fee agreed under article 3 A already. BARCELONA SC shall indemnify
EINTRACHT against all and any Training Compensation or expenses (including fees,
damages, legal costs, etc.) sustained by EINTRACHT as a result of Training Compensation
claimed by any other football club (in particular club ‘El Nacional’ to which the PLAYER
was loaned in 2015 by BARCELONA SC) or Football Association as a result of the Transfer
of the PLAYER to EINTRACHT”.
4. On 21 March 2017, the Ecuadorian club, El Nacional, contacted the Claimant requesting
training compensation for the transfer of the player from the Respondent to the
Claimant.
5. In this context, on 29 March 2017, the Claimant requested the Respondent to clarify
whether or not the latter was “prepared to directly settle this amount to El Nacional or
– at least – to reimburse it to [Frankfurt]”. According to the Claimant, the Respondent
“did not reply to this email”.
6. On 7 November 2017, El Nacional lodged a claim against Frankfurt in front of FIFA,
claiming training compensation for the transfer of the player from Respondent to the
Claimant.
7. In its reply, on 5 July 2018, Frankfurt rejected El Nacional’s claim and, subsidiarily,
requested that the former club, Barcelona SC, be involved in the proceedings and “be
held liable to reimburse any payments that the DRC might find [Frankfurt] to owe to El
Nacional […] as it is clearly agreed upon in clause 5 of the transfer agreement between
[Frankfurt] and Barcelona SC”.
8. On 17 September 2019, the Single Judge of the Sub-Committee of the Dispute
Resolution Chamber (DRC) rendered a decision pertaining to training compensation,
and ordered the Claimant to pay training compensation to El Nacional in the amount
of EUR 82,500 plus 5% interest p.a. on said amount as from 9 February 2017 until the
date of effective payment.
9. Subsequently, on 3 December 2019, the Claimant contacted FIFA, maintaining that it
had been “forced” to pay training compensation to El Nacional. In this context,
referring to the decision passed by the Single Judge of the Sub-Committee of the DRC
on 17 September 2019 (cf. point I.8. above), the Claimant requested that the
Respondent be condemned to reimburse the amount of EUR 93,394.52, allegedly paid
to El Nacional on 11 October 2019. Furthermore, the Claimant also requested to
condemn the Respondent to bear the costs of the proceedings.
10. In its claim, the Claimant argued that, in accordance with clause 5 of the transfer
agreement, the Respondent had to reimburse it of the training compensation that the
Claimant had to pay since both parties allegedly agreed “in deviation of the obligation
of the new club to bear training compensation claims of former clubs of the player”.
11. For its part, the Respondent disputed the admissibility of the claim, as it considered that
more than two years had elapsed since the facts that gave grounds to the claim arose.
12. As to the substance, the Respondent requested the Claimant’s claim to be rejected and
pointed out that, pursuant to clause 5 of the transfer agreement, the transfer fee
already comprised and included training compensation.
13. Furthermore, the Respondent maintained that clause 5 of the transfer agreement did
not establish that the Respondent had to reimburse the Claimant the amount paid as
training compensation. In this respect, the Respondent wished to emphasize that clause
5 of the transfer agreement only stipulated that the Respondent should indemnify the
Claimant in the event that the latter, as a result of training compensation claimed by
any other football club or Football Association, could have suffered certain “damage or
loss”.
II. Considerations of the Single Judge of the Players’ Status Committee
1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred
to as: the Single Judge) analysed whether he was competent to deal with 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. Consequently, and
since the present matter was submitted to FIFA on 3 December 2019, the Single Judge
concluded that the 2019 edition of the Rules Governing the Procedures of the Players’
Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural
Rules) was applicable to the matter at hand.
2. The Single Judge then reverted to the argument of the Respondent, according to whom
the present matter is barred by the statute of limitations. In this regard, the Single Judge
referred to art. 25 par. 5 of the FIFA Regulations on the Status and Transfer of Players
(edition 2019), according to which, inter alia, the Players’ Status Committee shall not
hear any case subject to the said Regulations if more than two years have elapsed since
the event giving rise to the dispute.
3. In this respect, the Single Judge considered that the event giving rise to the present
dispute was, in fact, the decision of the Single Judge of the Sub-Committee of the DRC
(cf. point I.8. above). Hence taking into account that the claim of the Claimant was
lodged on 3 December 2019, and considering that the decision of the Single Judge of
the Sub-Committee of the DRC was rendered on 17 September 2019, the Single Judge
established that the claim of the Claimant had been lodged within the two years
deadline provided for in the Regulations and therefore is not time-barred.
4. In view of the aforementioned, the Single Judge concluded that he is competent to hear
the claim lodged by the Claimant against the Respondent and to decide on the matter
at stake.
5. Subsequently, the Single Judge move to 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 2019 editions 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 3 December 2019. In view of the foregoing,
the Single Judge concluded that the October 2019 edition of the Regulations on the
Status and Transfer of Players (hereinafter: the Regulations) was applicable to the case
at hand as to the substance.
6. Furthermore, the Single Judge confirmed that, on the basis of art. 3 par. 1 and par. 2 of
the Procedural Rules in connection with art. 23 par. 1 and par. 4 as well as art. 22 lit. f)
of the Regulations, he was competent to deal with the present matter since it concerned
a dispute between two clubs affiliated to two different associations.
7. The competence of the Single Judge and the applicable regulations having been
established, and entering into the substance of the matter, the Single Judge started by
acknowledging the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. The Single Judge emphasised, however, that
in the following considerations he will refer only to the facts, arguments and
documentary evidence, which he considered pertinent for the assessment of the matter
at hand.
8. First of all, the Single Judge acknowledged that it was undisputed that, on 15 December
2016, the Claimant and the Respondent concluded the agreement by means of which
the player was transferred on a permanent basis, from the Respondent to the Claimant.
9. Equally, the Single Judge observed that, the Single Judge of the Sub-Committee of the
DRC passed a decision on 17 September 2019, according to which the Claimant was
ordered to pay training compensation to El Nacional in the amount of EUR 82,500 plus
5% interest p.a. as from 9 February 2017.
10. Furthermore, the Single Judge recalled that, according to clause 5 of the transfer
agreement, the parties had agreed that the Respondent was to “indemnify” the
Claimant “against all and any Training Compensation or expenses (including fees,
damages, legal costs, etc.) sustained by EINTRACHT as a result of Training Compensation
claimed by any other football club […] or Football Association as a result of the Transfer
of the PLAYER to EINTRACHT”.
11. The Single Judge then observed that the Claimant, referring to clause 5 of the transfer
agreement, asked for reimbursement of the amount allegedly paid to El Nacional.
12. As regards the content of clause 5 of the transfer agreement, the Single Judge further
observed that, according to the Claimant, “the parties regulated that – in deviation of
the obligation of the new club to bear training compensation claims of former clubs of
the player – it should be Barcelona SC who is finally responsible for such claims”.
13. The Single Judge further took due note of the fact that the Respondent, on its part, had
categorically denied that a reimbursement was agreed upon the parties, stressing that
clause 5 of the transfer agreement only referred to the possibility of indemnifying the
Claimant.
14. Bearing in mind the aforementioned, the Single Judge went on to examine the
documentation on file. In this respect, the DRC wished to recall that according to the
legal principle of the burden of proof contained in art. 12 par. 3 of the Procedural Rules,
any party claiming a right on the basis of an alleged fact carries the burden of proof.
15. With those considerations in mind, the Single Judge was of the opinion that the
Claimant did not provide sufficient evidence that could prove the damages allegedly
suffered. In particular, the Single Judge observed that the Claimant did not submit a
copy of the decision passed by the Single Judge of the Sub-Committee of the DRC on 17
September 2019, nor provided a proof of payment of the relevant amount of training
compensation to El Nacional.
16. In view of the above, taking into account the lack of documentary evidence provided
by the Claimant, the Single Judge deemed that it was impossible to determine whether
the Claimant had indeed complied with the aforementioned decision of the Single
Judge of the Sub-Committee of the DRC.
17. In light of the foregoing, and in absence of any other evidence, the Single Judge came
to the conclusion that the Claimant had failed to satisfactorily carry the burden of proof
regarding its alleged entitlement for reimbursement of the amount of EUR 93,394.52.
18. All the above led the Single Judge to conclude that the claim of the Claimant had to be
rejected.
19. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with
art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the
Players’ Status Committee including its Single Judge, costs in the maximum amount of
CHF 25’000 are levied. The relevant provision further states that the costs are to be
borne in consideration of the parties’ degree of success in the proceedings (cf. art. 18
par. 1 of the Procedural Rules).
20. In respect of the above, and taking into account that the Claimant is the unsuccessful
party in the present proceedings, the Single Judge concluded that the procedural costs
are to be borne by the Claimant.
21. 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 93,394.52. Consequently, the Single Judge concluded that the
maximum amount of costs of the proceedings corresponds to CHF 10,000.
22. As a result, taking into account the particularities of the present matter as well as that
the claim of the Claimant has been rejected, the Single Judge determined the costs of
the current proceedings to the amount of CHF 5,000, which shall be borne by the
Claimant.
*****
III. Decision of the Single Judge of the Players’ Status Committee
1. The claim of the Claimant, Eintracht Frankfurt, is rejected.
2. The final amount of costs of the proceedings of CHF 5,000 is to be paid by the Claimant
within 45 days as from the date of notification of the present decision to FIFA to the
following bank account with reference to case nr. 19-02146:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
3. In the event that the aforementioned amount of costs is not paid within the stated time
limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary
Committee for consideration and a formal decision.
*****
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 relating to the appeal procedure:
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. 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 (CAS)
Avenue de Beaumont 2
CH-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