F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2020-2021) – fifa.com – atto non ufficiale – Decision 9 February 2021

Decision of the

Single Judge of the PSC

passed on 9 February 2021

regarding a dispute concerning the transfer of the player Serdar Gürler

BY:

Stefano La Porta (Italy), Single Judge of the PSC

CLAIMANT:

OsmanliSpor FK, Turkey

Represented by Mr. Ali Topuz

RESPONDENT:

SD Huesca, Spain

Represented by Mr. Pedro Camarero Rodríguez

I. FACTS OF THE CASE

1. On 7 August 2018, the Turkish club, OsmanliSpor (hereinafter: the Claimant), and the Spanish club, SD Huesca (hereinafter: the Respondent), signed a transfer agreement for the permanent transfer of the player, Mr. Serdar Gürler (hereinafter: the player), from the former to the latter (hereinafter: the transfer agreement).

2. In accordance with clause 1.1 of the transfer agreement, the Respondent undertook to pay to the Claimant, inter alia, the following amounts:

a. the total amount of EUR 2,300,000 as fixed transfer fee in two equal instalments (clause 1.1, par. 1);

b. “in case of the Player is transferred to a third club, [the Respondent] shall pay 20% (twenty percent) of the transfer fee that is received from the sale to [the Claimant] within 7 (seven) days from the transfer date of the Player” (clause 1.1, par. 4).

3. Additionally, clause 1.2, par. 3 of the transfer agreement also established the following: “should the above mentioned payments not be paid in due time, for whatever reason, in additional to the principal due, there will be a lump sum penalty of 15% (fifteen percent) and [the Respondent] shall be liable for that”.

4. In this context, according to the information available in the Transfer Match System (TMS), the player was transferred on a loan basis from the Respondent to the Turkish club, Götzepe AS, in consideration of a loan fee of EUR 400,000. The player was registered with Götzepe AS on 14 January 2019.

5. Furthermore, the information available in the TMS also shows that, on 5 October 2020, the player was re-registered with the Respondent and subsequently transferred to the Turkish club, Antalyaspor Spor within the same month. The instruction entered in TMS for said transfer was “engage out of contract free of payment”.

6. By correspondences dated of 3 September and 10 September 2020, the Claimant requested the Respondent the payment of the relevant sell-on fees (i.e. 20% of the EUR 400,000). In the same opportunity, the Claimant also claimed to be informed about the financial conditions of the transfer of the player from the Respondent to Antalyaspor Spor.

7. On 14 September 2020, the Respondent replied to the Claimant denying owing any sell-on fee due to the fact that the transfer agreement referred only to a sell-on fee being due in case of the “sale” of the player, whereas the player transferred to Götzepe AS on a temporary basis.

II. PROCEEDINGS BEFORE FIFA

8. On 18 September 2020, the Claimant filed the claim at hand before FIFA. A brief summary of the position of the parties is detailed in continuation.

a. The claim of the Claimant

9. According to the Claimant, the Respondent failed to make the payment in relation to the sell-on fee, as established in clause 1.1, par. 4 of the transfer agreement. In this regard, the Claimant argued that it is entitled to an overdue payable of EUR 80,000, corresponding to 20% of the loan fee agreed between the Respondent and Götzepe AS (i.e. EUR 400,000).

10. In addition, the Claimant also referred to the penalty clause under clause 1.2 par. 3 of the transfer agreement.

11. In support of his allegations, the Claimant underlined that the Respondent made some solidarity contribution payments over the amount of EUR 80,000 (case ref. no. TMS 4395), however the sell-on fee remained unpaid.

12. Finally, the Claimant emphasised that it was not aware as to whether the player was transferred from the Respondent to Antalyaspor Spor against payment, and requested to be provided with the relevant information contained in the TMS.

13. The requests for relief of the Claimant were the following:

1. To accept the claims of the Claimant in full,

2. To condemn the Respondent to pay in favour of the Claimant the outstanding sell-on fee amounting to EUR 80,000 plus 5% interest as from 21 January 2019 until the effective date of payment,

3. To condemn the Respondent to pay in favour of the Claimant a penalty in the amount of EUR 12,000 plus 5% interest as from 21 January until the effective date of payment,

4. The inform the Claimant regarding the financial conditions of the Player’s transfer to Club Antalyaspor Spor, afterwards, to allow the Claimant to submit an additional petition in order to specify the possible entitlements,

5. To impose sanctions mentioned in art. 24bis of the FIFA RSTP against the Respondent,

6. To establish that the costs of the present arbitration procedure shall be borne by the Respondent.

b. Position of the Respondent

14. Conversely, the Respondent denied the Claimant’s claim by mainly stating that the temporary loan of the player to Götzepe AS did not constitute a “sale” in the sense of clause 1.1, par. 4 of the transfer agreement.

15. Consequently, the Respondent is of the opinion that clause 1.1, par. 4 (and, hence, clause 1.2, par. 3) of the transfer agreement shall not be applied, in casu, as the player was not sold, but only temporarily transferred to Götzepe AS.

16. In conclusion, the Respondent deems that it does not owe any amounts to the Claimant as sell-on fee and requests FIFA do dismiss the Claimant’s claim.

III. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYER’S STATUS COMMITTEE

a. Competence and applicable legal framework

17. First of all, the Single Judge of the Player’s Status Committee (hereinafter also referred to as Single Judge) analysed whether he was competent to deal with the case at hand. In this respect, he took note that the present matter was presented to FIFA on 18 September 2020 and submitted for decision on 9 February 2021. Taking into account the wording of art. 21 of January 2021 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is applicable to the matter at hand.

18. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and observed that in accordance with art. 24 par. 1 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players (edition of February 2021), the Players’ Status Committee is competent to deal with the matter at stake, which concerns in international dispute between clubs belonging to different associations, i.e. a Turkish club and a Spanish club.

19. Subsequently, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Player (edition of February 2021), and considering that the present claim was lodged on 18 September 2020, the August 2020 edition of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to the substance.

b. Burden of proof

20. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof. Likewise, the Single Judge stressed the wording of art. 12 par. 4 of the Procedural Rules, pursuant to which he may consider evidence not filed by the parties.

21. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in TMS.

c. Merits of the dispute

22. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the merits of the dispute. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the 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 he considered pertinent for the assessment of the matter at hand.

i. Main legal discussion and considerations

23. Initially, the Single Judge acknowledged that it remained undisputed between the parties that, on 7 August 2018, a transfer agreement was concluded relating to the transfer of the player from the Claimant to the Respondent and that said transfer agreement contained a sell-on clause as set out above (i.e. clause 1.1 par. 4).

24. Equally, the Single Judge also observed that it remained undisputed between the parties that the player was transferred on loan from the Respondent to Götzepe AS in January 2019.

25. The foregoing having been established, the Single Judge noted that the Claimant lodged a claim before FIFA against the Respondent stating that the abovementioned clause had matured when the player was transferred on loan from the Respondent to Götzepe AS, arguing that “the transfer agreement also includes the temporary transfers”.

26. Furthermore, the Single Judge took note that, in its reply, the Respondent followed the opposite direction, by stressing that clause 1.1 par. 4 of the transfer agreement was only intended to apply in the event the player was transferred on a permanent basis.

27. After having carefully examined the parties’ positions and taking into consideration the exact wording of the transfer agreement, the Single Judge held that the loan transfer of the player cannot be considered as a “sale” and, hence, does not trigger the payment of the conditional fee as stipulated in the transfer agreement.

28. At this point, the Single Judge reverted to the PSC’s well-established jurisprudence in order to conclude that if the parties wanted the sell-on clause to include temporary transfers, they should have expressly stipulated so. In this regard, the Single Judge noted that the parties had excluded a loan transfer from the scope of clause 1.1 par. 4 of the transfer agreement by choosing the specific term “sale”.

29. What is more, the Single Judge observed that the employment contract between the player and the Respondent was not terminated, but merely temporarily suspended, as well as the player’s services were merely loaned to Götzepe AS, not definitely sold to said club.

30. Having established the above, the Single Judge concluded that clause 1.1 par. 4 of the transfer agreement had not matured and, therefore, that the Claimant is not entitled to receive the conditional payment from the Respondent.

31. For the sake of completeness, the Single Judge deemed important to remark that the subsequent transfer of the player to Antalyaspor Spor is not relevant to outcome of the case at stake, insofar as it was free of charge.

32. Therefore, the Single Judge concluded that he had no alternative but to reject the claim.

d. Costs

33. Lastly, the Single Judge referred to article 18 par. a lit. 1) of the Procedural Rules, according to which no costs shall be levied by the parties for claims lodged between 10 June 2020 and 31 December 2020 (both inclusive). Accordingly, the Single Judge decided that no procedural costs were to be imposed on the parties.

34. Likewise and for the sake of completeness, the Single Judge recalled the contents of art. 18 par. 4 of the Procedural Rules, and decided that no procedural compensation shall be awarded in these proceedings.

IV. DECISION OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The claim of the Claimant, OsmanliSpor, is rejected.

2. This decision is rendered without costs.

For the Single Judge of the PSC:

Emilio García Silvero

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

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