TAS-CAS – Tribunale Arbitrale dello Sport – Corte arbitrale dello Sport (2012-2013)———-Tribunal Arbitral du Sport – Court of Arbitration for Sport (2012-2013) – official version by www.tas-cas.org – Arbitration CAS 2011/A/2539 Borussia VfL v. Boca Juniors & Fédération Internationale de Football Association (FIFA), interim award of 3 September 2012 Panel: Mr José Juan Pintó Sala (Spain), President; Mr Efraim Barak (Israel); Mr Michele Bernasconi (Switzerland) Football Scope of the FIFA Regulations on the Status and Transfer of Players (RSTP) Interpretation of the will of the parties

TAS-CAS - Tribunale Arbitrale dello Sport - Corte arbitrale dello Sport (2012-2013)----------Tribunal Arbitral du Sport - Court of Arbitration for Sport (2012-2013) - official version by www.tas-cas.org – Arbitration CAS 2011/A/2539 Borussia VfL v. Boca Juniors & Fédération Internationale de Football Association (FIFA), interim award of 3 September 2012 Panel: Mr José Juan Pintó Sala (Spain), President; Mr Efraim Barak (Israel); Mr Michele Bernasconi (Switzerland) Football Scope of the FIFA Regulations on the Status and Transfer of Players (RSTP) Interpretation of the will of the parties 1. The wording of article 22e) RSTP does not include limits, restrictions or precisions on the kind of disputes “between clubs belonging to different Associations that do not fall within the cases foreseen in a) and d)” comprised therein. The text of the referred article does not per se intend to restrict such disputes to those deriving from loans and transfers. 2. The will of the parties has to be taken into account when deciding on jurisdiction. I. THE PARTIES 1. Borussia VfL 1900 Mönchengladbach GmbH (hereinafter “Borussia” or the “Appellant”) is a professional football club with seat in Mönchengladbach (Germany), affiliated to the German Football Association. 2. Club Atlético Boca Juniors (hereinafter “Boca” or the “First Respondent”) is a professional football club with seat in Buenos Aires (Argentina), affiliated to the Argentinean Football Association. 3. Fédération Internationale de Football Association (hereinafter “FIFA” or the “Second Respondent”) is an association in accordance with Swiss law; it is the governing body of football on worldwide level and has its registered office in Zurich, Switzerland. II. FACTS OF THE CASE. THE PROCEEDINGS BEFORE FIFA AND THE CAS 4. A summary of the facts and background giving rise to the dispute will be developed below based on the parties’ submissions and the evidence taken up to this stage of the proceedings. Additional background may be also mentioned in the legal considerations of the present award on jurisdiction. In any case, the Panel has considered all the factual allegations, legal arguments and evidence submitted by the parties in the present proceedings concerning the jurisdiction issues, but it refers in this award on jurisdiction only to the submissions and evidence it considers necessary to explain its reasoning. II.1 THE AGREEMENTS SIGNED BY BORUSSIA AND BOCA. THE EVENTS GIVING RISE TO THE DISPUTE 5. On 6 June 2006, Borussia and Boca signed an agreement (hereinafter the “Transfer Agreement”) by virtue of which the Argentinean player F. (hereinafter the “Player”) was transferred from Boca to Borussia on a definitive basis for a fixed price of USD 3.500.000. 6. In accordance with clause 6 of the Transfer Agreement, in case Borussia transferred the Player to a third club, Boca would be entitled to receive 15% of the total transfer fee paid by such third club to Borussia. 7. On 27 July 2006, Borussia and Boca signed another agreement, which the parties named (and which it will be referred to here as) the “Cooperation Agreement”, comprising, among others, the following clauses: Clause 1 (Fundamentals of cooperation): “1. BOCA and Borussia agree on a qualified exchange of ideas and experience in the performance division for the new generation and youth soccer by taking especially into account: - Training and development methods; - Organization and planning; - Integration of youth players in the performance and professional area; - Education and advanced training of trainers and support staff; - Advanced training and development of the youths in the area of soccer training, in the area of physical training regarding fitness and physical shape as well as in the area of tactics and play system; - In the medical area as well as in the area of school and professional training of soccer talents. 2. The Clubs Boca and Borussia assure each other full confidence and comprehensive cooperation in connection with this exchange of ideas and experience and the related cooperation. Borussia shall receive the opportunity to send talents from the performance division of its own soccer youth to Argentina to integrate them for a limited time into the training and educational program of BOCA for the purpose of advance training. 3. Borussia shall receive the opportunity to send senior employees and trainers from the training and youth division to Argentina to integrate them for a limited time into the training and educational program of BOCA for the purpose of advance training. 4. Borussia shall receive the opportunity and BOCA undertakes to integrate outstanding talents into its youth teams in compliance of the national and international regulations of soccer sports in accordance with the athletic and economic realities and the relevant requirement, in each case in detail pursuant to the provisions of this Cooperation Agreement. 5. In connection with this cooperation Boca and Borussia agree on further cooperation in important areas, such as for example the opportunity to hold a friendly match in Monchengladbach as part of BOCA’s tour in Europe and, on this occasion, have a comprehensive exchange of ideas in the youth, educational and professional sector”. Clause 2 (Services of BOCA in detail): “1. BOCA and Borussia agree on the implementation of a joint qualification program for trainers and educational staff from the performance division of the soccer youth and professionals. Subsequently, for every contract year Borussia shall receive the opportunity to integrate up to 4 qualified workers from the division of trainers and educational staff into the training and educational program of BOCA for the duration of 3 months. Borussia shall assume the costs for the trip, BOCA shall assume all local costs such as accommodation, housing, food, equipment, etc. In this connection BOCA undertakes to grant the trainers and support staff carefully chosen by Borussia comprehensive insight into the training and educational system of BOCA. 2. Borussia shall receive the opportunity to send select and talented youths up to 20 years of age from the performance division of Borussia to BOCA in Argentina, so that they will be integrated there by BOCA in the training, educational land competitive area of the BOCA for the intended duration of 2 months, in order to develop and optimize their theoretical and practical training in everyday life. To this end, Borussia shall assume the costs for the trip, BOCA shall assume the costs for accommodation, housing, food, equipment etc. In this connection, BOCA shall be responsible for the diligent supervision and accommodation of the youths in Argentina in educational and personal terms. In this regard, it is intended that every year some 10 youth soccer players of Borussia have the opportunity to utilize this area of cooperation in groups of 2 youths, in each case. 3. As part of qualified exchange program BOCA and Borussia shall exchange concrete and qualified ideas about the practical and theoretical training of their youths and next-generation talents and see to it that experience, knowledge and skills can be used on a mutual basis through regular visits of trainers, senior instructors and support staff. 4. The youth soccer players and the trainers, instructors and support staff sent to Argentina as part of this cooperation between Borussia to BOCA in accordance with the regulations of the Agreement, shall be cared for onsite at BOCA in Buenos Aires by BOCA comprehensively and professionally, with BOCA assuming, among other things, the following services and duties in this regard: - Receiving and seeing the members of the delegation of Borussia off at the International airport of Buenos Aires and transport to the housing facilities; - Accommodation at the residential complex Casa Amerilla of BOCA, in each case in double rooms including cleaning; - Technical and athletic instructions, practical and theoretical lessons; - Participation in the training units at the various youth teams of BOCA; - Organizing soccer trips including friendly matches, participation in national tournaments with full integration of the members of the delegation of Borussia in the soccer club of BOCA; - Regular performance valuation of the members from the delegation of Borussia by qualified education and advanced training staff of BOCA; - Covering of medical needs, including medical treatment of illness and injuries during the stay of the members of Borussia at BOCA; they shall receive the same medical care (heath insurance) as the youth players of BOCA; - Free access for all members from the delegation of Borussia to the games of the professional team at the home stadium of BOCA in Buenos Aires. 5. On the other hand, in connection with the implementation of this cooperation concerning the dispatch of youth players, instructors, trainers, etc. Borussia undertakes to assume the following services: - Timely and complete submission of a list with the names of the youth athletes, trainers and instructors, at least 10 business days before the arrival in Argentina, including the personal data, photographs, the medical confirmation for the participation in the professional and performance-related training and education program of BOCA, a list with the personal family history and presentation of the necessary identification papers for entry into Argentina; - Provision of a Spanish-to-German interpreter who will accompany the youth soccer players, the trainers, instructors, etc. through their entire stay in Argentina; - Taking out qualified, adequate insurance in coordination with BOCA in time before arrival in connection with covering against the risks of accidents, illness, death, liability, etc. on an international standard, with BOCA supporting and advising Borussia in this regard; - Compliance with the provisions for entering and leaving Germany and Argentina by observing the relevant regulations for minors and their representation through parents, legal guardians, etc. - Wording of the submitted papers and documents in Spanish and, if need be, certification of the translation by the Argentinean Embassy of Berlin. - […]. 6. BOCA is seriously seeking to hold a friendly match during a tour of its professional team in Europe with the best possible team at Borussia in Monchengladbach, with Borussia and BOCA agreeing at this point in time that BOCA shall receive 50% of the remaining proceeds for this game after deduction of all costs, including the proceeds for advertising and marketing the TV rights for this game, with Borussia completely leaving marketing the TV rights for Argentina solely and exclusively up to BOCA”. Clause 3 (Transfer of soccer players from Boca to Borussia): “1. BOCA and Borussia agree in connection with this cooperation that Borussia has the option and the right to integrate qualified and outstanding soccer players trained by BOCA above the age of 18 years (expanded team of the first team of BOCA) into Borussia’s own professional team in the German Soccer League, in each case pursuant and according to the arrangements of this Agreement. 2. In this connection it is planned for Borussia to receive the right and the option to integrate into its own professional team, during the term of this Cooperation Agreement and after a decision by Borussia, one – at least 18-year old – player from BOCA (expanded team of the first team of BOCA) per season in Germany in the German Soccer League (thus from 7/1 to 6/30 of a particular year), however two players for the 2006/2007 season. These players shall be selected according to the wishes of Borussia in coordination with BOCA. Initially, these players shall receive firm agreements at Borussia as soccer professionals for one season, with Borussia assuming the costs for the compensation and the other obligations under labour law according to the official German statutes and the regulations of DFL Deutsche Fussball Liga GmbH (German Soccer League) for their stay in Germany. 3. BOCA’s making these players available in favor of Borussia for the period of a soccer season in German Soccer League shall be free for Borussia. No loan fee and no other compensation shall accrue. 4. After the end of the first season Borussia shall have the right to take over these players completely and permanently into its own team. Borussia must declare to BOCA in writing by May 15 of the first season whether the so transferred players, in each case, will be finally taken over by Borussia into its team, or whether they will return to BOCA from Borussia on June 30 of the respective season. In case of a turn to BOCA, Borussia shall owe BOCA nothing. In case Borussia declares to BOCA on time the final takeover of these players into its own team, all transfer and federative rights to these players shall pass from BOCA to Borussia. Simultaneously, 70 % of the economic rights of BOCA to these players shall pass to Borussia. For the passage of all transfer rights and all federative rights as well as passage of 70% of the economic rights Borussia shall pay BOCA a net amount of USD […] per player, payable ten days after the expiration of the transfer period on loan. Borussia must inform BOCA in writing about exercising its option vis-à-vis BOCA. The parties involved determine that the players mentioned here concern players trained by BOCA. 5. If, during the employment between the player finally taken over by Borussia and the latter, the transfer rights and the economic rights to the player are further assigned to another club and/or another natural person in Germany or abroad, Borussia, in this case, undertakes to pay 30% of the proceeds from the transfer compensation with such third party, which flows to Borussia itself, to BOCA. 6. In case Borussia does not exercise the agreed option and the player returns to Argentina to BOCA, Borussia undertakes to make all statements under association law for an immediate return of the player to BOCA and safeguard the rights of BOCA. In this case no costs and compensation shall accrue for Borussia. For this case the contracting parties BOCA and Borussia determine that all transfer and federative rights as well as all economic rights shall lie exclusively with BOCA for this case of the player’s return from Borussia to BOCA. 7. During the selection of the players in accordance with this area of the cooperation, BOCA and Borussia shall collaborate closely and with trust, and conduct the selection carefully and professionally for optimal use by Borussia. Borussia shall be under no obligation to exercise and exploit its rights according to this portion of the cooperation. This shall merely concern a right, but no obligation of Borussia. The contracting parties BOCA and Borussia assume that these select players are outstanding talents of BOCA (expanded team of the first team of BOCA), who on the basis of their training condition, are suited to live up to the standard of performance of the German Soccer League and to strengthen the German Soccer League team of Borussia”. Clause 4 (Payments from Borussia to BOCA): “1. Borussia commits to BOCA to make payments for the fulfilment and the provision of the services under this Cooperation Agreement. 2. BOCA shall use these payments to develop and enhance its own soccer school and ensure that the services and obligations vis-à-vis Borussia set forth here shall be fulfilled fully and professionally. 3. In connection with the conclusion, the implementation and the fulfilment of this Cooperation Agreement Borussia shall pay to BOCA the total sum of USD 1,315,000.00. This amount shall be paid in instalments and require the fulfilment of the obligations by BOCA in accordance with this Cooperation Agreement. For the payment of this sum the following instalments shall be arranged between Borussia and BOCA: - 1. instalment: USD 765,000.00, payable 10 days after conclusion of this Cooperation Agreement; - 2. instalment: USD 200,000.00 on 6/30/2007; - 3. instalment: USD 200,000.00 on 6/30/2008; […]”. Clause 5 (Contract term): “1. Cooperation shall begin on 06/30/2006 2. Cooperation shall be firmly agreed upon for a period of four play seasons, thus until 06/30/2010 3. During this contract term all mutual obligations and services in accordance with this Cooperation Agreement must be fulfilled. 4. Cooperation shall end on 6/30/2010 The contracting partners BOCA and Borussia shall communicate in time about the continued cooperation beyond such time”. Clause 6 (Miscellaneous): “[…] 4. FIFA rules and regulations shall apply without limitation. […] 6. For disputes in connection with this Agreement the contracting parties arrange for the competent FIFA bodies to have exclusive jurisdiction, although both contracting parties may submit the legally binding and final FIFA decisions, if necessary to CAS for review. Unless stated, the Parties establish their seat at the abovementioned places. Court and out-of court services effected to these places shall be deemed legally binding. For all legal disputes arising from this Agreement the Parties expressly arrange for the competent FIFA bodies based in Zurich/Switzerland to have jurisdiction”. 8. On 16 May 2007, Borussia sent a letter to Boca concerning the clubs’ cooperation, in which it made some requests related to such cooperation. The relevant part of this letter (translation into English of the original letter in Spanish) reads as follows: “[…] The Cooperation that has existed for almost one year by now has not been exploited thus far from either club as intended at the time when the agreement was signed. As you told us on the occasion of our trip to Buenos Aires, your U-19 team will participate in a tournament in Ennepetal from May 27 to May 29, 2007, which we would very much like to use as an occasion to deepen our cooperation. We would be glad if you could send a list by fax in the next few days with the names of the players of Boca Juniors that will take part in the tournament. This tournament will also be watched by executives from our club, so that would be pleased to have discussions with those responsible at your U-19 team. In connection with our concluded Cooperation Agreement, Borussia Monchengladbach was given the opportunity to resort to players from your club, so that they may be deployed at Borussia Monchengladbach. For this reason, we ask you to let us know if there is a possibility to borrow the player M., […], for one year. We also ask you to list additional players that could be possibly be borrowed. To make it possible for the players to acclimatize in Germany, already before the beginning of the season and taking into account the transfer period (8/31/2007), it would be helpful to handle the transfer of a player to Borussia Monchengladbach as quickly as possible. We hope to hear from you soon and assure you that, as a partner of Borussia Monchengladbach, you are always welcome to our club”. 9. On 4 June 2007, Borussia sent a new letter to Boca expressing certain complaints about their cooperation. This letter, in its pertinent part, reads as follows: “We had written to you on May 16, 2007 and asked you, among other things, for a list containing the players of your U-19 team that stayed at Ennepetal from May 27 to May 29, 2007. Unfortunately, we received no response at all. To our great astonishment we have learnt in the meantime from other sources that your U-19 team had already been staying in Germany and neighboring countries since approximately mid May and we, as your cooperation partner, received absolutely no information whatsoever. Your team was, for example, in Doetinchem/Holland from May 18 through May 20 and played friendly in Bocholt on May 23. Doetinchem is located about 140 km from and Bocholt about 100 km from Monchengladbach. Ennepetal, where the tournament took place, is only about 80 km from Monchengladbach. It is certainly difficult to have any cooperation given the great distance between Germany and Argentina. However, it is completely incomprehensible for us that we were not informed during our stay in Argentina in April of 2007 that the U-19 team would be in Germany for about two weeks. The players of this team specifically travel to Europe to present themselves to the local club. As your cooperation partner we believe that we can expect that we would be your first contact for young players that come into consideration for Germany. For the conclusion of the Cooperation Agreement Borussia Mönchengladbach is paying a total amount of USD 1,315,000.00 to you. Unfortunately, there has not been any consideration on your part thus far, making the partnership very unilateral. We ask you once again to let us know how you envision any future cooperation. In addition, we are once again inquiring about the possibility of a transfer of the player M. We had also addressed this question to you in our letter dated 5/16/2007”. 10. On 21 June 2007, Borussia sent another letter of complaint to Boca with regard to their cooperation relationship, in the following terms: “We are once again referring to our letters dated 5/16/2007 and 6/4/2007, to which we have received no response from you to date. Please let us know how you envision the course of our continued cooperation. Thus far, you have made no efforts whatsoever to fill this cooperation with life. We had asked you on May 15 to no avail to send us a list with players from the team that was to take part in a tournament at Ennepetal from May 27 to May 29, 2007. We were also not informed about your participation in games in Doetinchem/Holland and Bocholt. Moreover, our questions regarding the possibilities of signing the player M. or other U-19 players were also unanswered. Please let us know by the end of this month how you envision the future cooperation between our two clubs. It cannot be the purpose of cooperation to receive payments without providing the services as promised. If you fail to signal any willingness by 6/30/2007 to cultivate any cooperation on your part as well, we will no longer make additional payments to you. In that case we will be forced the cancel cooperation prematurely for breach of contract”. 11. On 3 July 2007, Boca replied to the abovementioned letters of Borussia as follows: “We are addressing you in response to your letters concerning the Cooperation Agreement. We would like to respond in this regard: although you are right concerning our lack of response as well as concerning the player M. and the list of potential players that could play at your club, we do not agree with your statement in your letter dated June 4 that you received nothing in return from us to all. First of all personally, and also along with the president of the youth division, we provided you with all our knowledge and experience, we especially gave you explanations about the work we handled in the past, and about the work we currently handle in our club; not without reason did I give 20 years to the club, during which I took part in the positioning of Boca as a global soccer club. We are quite familiar with the reason why we signed the Agreement with you, which is the subject today; we respect what we signed without reservation, and will adequately fulfil the Agreement. Regardless of our abovementioned statement and without trying to find an excuse for our delayed response, we ask that you accept our sincere apology and note that we had difficult tasks during the months of May and June; in addition there were all the trips due to participation in the “Copa Libertadores de America,” which we won. In terms of the player M.: we cannot transfer him, since he will be directly used as a substitution for one of our center backs, who is a regular player, in case of a possible transfer. Nevertheless, we are in the position to suggest the following players: E. (center back), S. (midfielder), A. (left midfielder), C. (key player), T. (center forward). Tomorrow, we will send you the address and the homepage where you can watch the personal profiles and videos of the abovementioned players, with the exception of the player C., for whom we need some time to be able to provide the corresponding video”. 12. In July 2007, the Player was transferred from Borussia to Club de Fútbol América for a transfer fee of USD 4.600.000. 13. Immediately after the execution of such transfer, Boca claimed from Borussia the payment of 15% of such transfer fee. 14. On 1 August 2007, Borussia sent another letter to Boca making new requests complaints regarding their cooperation relationship. This letter, in its pertinent part, reads as follows: “We are unable to detect much initiative on the part of your club to “fill the Agreement with life”. After much effort BORUSSIA Mönchengladbach managed to arrange a visit for two of our gentleman, Max Eberl (youth and amateur director) and Mario Vossen (chief coordinator for scouting), from April 25, 2007 to April 30, 2007. The background was to have an exchange about the existing cooperation and effect a start of the measures described in the Agreement. In order to be able to conduct effective discussions, the two gentlemen were accompanied by an interpreter, Antonio Bercely. Unfortunately, during our visit to Argentina we were not convinced that Boca was interested in fulfilling the Cooperation Agreement. Mr. Clemente, you received the gentlemen from our BORUSSIA once. The other three visits came about only due to our persistent inquiries and without your participation. The visitor’s program that had been communicated to us was not organized. Rather, the representatives from our club had to take responsibility to organize their own schedule. Invitations to a dinner extended by us were not answered, just like the invitation to you, Mr. Clemente, to attend the game against FC Bayern München was ignored. You provided tickets to our representatives at the fan block to watch a game on 4/29/2007. No official from your club was available. Luckily, Mr. Antonio Bercely was present in his function as an interpreter – as it turned out the most important component of the trip to find our way around. Please allow us the remark that BORUSSIA Mönchengladbach has a different concept of hospitality. The trip by the U19 to Germany and Holland could have been connected with a visit to Mönchengaldbach. Why did this trip not come about? From the perspective of BORUSSIA Mönchengladbach we could have exchanged ideas ahead of time. Potential players could have learnt the modalities in Mönchengladbach and we could have met the players. Why don’t you hand over the promised player lists? We received video material of two players. Additional, announced video material has thus far not been provided. After his test training in Cologne the player Tripoldi did not make it into the Bundesliga (German Soccer League). What are criteria you use to offer your players? Dear Mr. Clemente, with so many question marks concerning our mutual cooperation, we expect a statement from you as to how you will fulfil our cooperation, which exists until 6/30/2010”. 15. On 18 October 2007, Borussia terminated the Cooperation Agreement and requested from Boca the reimbursement of the amount received from Borussia upon the signature of the agreement. The letter of termination, in its pertinent part, reads as follows: “Clause 2 of the Cooperation Agreement very specifically establishes the obligations, which your club entered into with us, and the fulfilment of which is the precondition for all our payments. At no time have you met these obligations, so that we are now forced to end the cooperation and bring about the reimbursement of the amount of USD 765.000. […] In light of these facts we find that we have not received a consideration from your club arising from the Cooperation Agreement thus far, and that we can also not assume that such a consideration will ever be forthcoming. Accordingly, we suggest to you to formally rescind the Cooperation Agreement and ask for your consent by 9/25/2007. In the alternative, we hereby declare cancellation without notice of the Cooperation Agreement for cause, that - despite several requests to this effect- you have neither met your obligations from the Cooperation Agreement nor specifically explained how this could happen in the future. We ask you to repay the amount of USD 750.000 by 9/25/2007 to one of the accounts listed in this letter, and we point out once again that any payment by our club to you, pursuant to the express content of the Cooperation Agreement, required for you to meet your obligations”. II.2 THE PROCEEDINGS BEFORE FIFA 16. On 28 November 2007, Boca filed a claim against Borussia before FIFA, requesting the payment of USD 655.500 (i.e. 15% of the Player’s transfer compensation minus 5% of solidarity contribution) plus interest. 17. On 25 September 2008, Borussia filed its response to the referred claim, in which it acknowledged owing the amount of USD 655.500, but also argued via counterclaim that Boca should be ordered to pay Borussia the sum of USD 765.000 plus interest based on Boca’s breach of the Cooperation Agreement. Therefore Borussia asked FIFA to set off the first amount against the second and thus, to order Boca to pay USD 109.500 plus interest. 18. On 24 January 2011, the Single Judge of the FIFA Players’ Status Committee decided to accept Boca’s claim and not to admit Borussia’s counterclaim. The operative part of this decision (hereinafter the “Decision”) reads as follows: 1. The claim of the Claimant/Counter-Respondent Atlético Boca Juniors, is accepted. 2. The Respondent / Counter-Claimant, Borussia VfL 1900 Mönchengladbach, has to pay to the Claimant / Counter-Respondent, Atlético Boca Juniors, the amount of USD 655.500 as well as 5% interest per year on the said amount from 28 July 2007 until the date of effective payment, within 30 days as from the date of notification of this decision. 3. The counter-claim of the Respondent / Counter-Claimant, Borussia VfL 1900 Mönchengladbach is not admissible. 4. If the aforementioned sum plus interest is not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. The Claimant / Counter- Respondent, Atlético Boca Juniors, is directed to inform the Respondent / Counter – Claimant, Borussia VfL 1900 Mönchengladbach, immediately and directly of the account number to which the remittance is to be made and to notify the Player’s Status Committee of every payment received. 6. The costs of the proceedings in the amount of CHF 20,000 are to be paid by the Respondent / Counter-Claimant, Borussia VfL 1900 Mönchengladbach within 30 days as from the notification of the present decision […]. 19. The referred inadmissibility of Borussia’s counterclaim was based on the fact that the Cooperation Agreement, in the Single Judge’s view, falls outside the scope of the FIFA Regulations on the Status and Transfers of Players (hereinafter the “RSTP”) and, correlatively, of FIFA’s competence to know about disputes deriving from it, since such agreement does not per se relate to the transfer or loan of a particular player. II.3 THE PROCEEDINGS BEFORE THE CAS 20. Borussia did not agree with the Decision and on 16 August 2011 appealed against it before the CAS, requesting in its Statement of Appeal that an award be rendered in the following terms: 1. The before-mentioned decision of the Respondent nº 2 is annulled, the Respondent nº 1’s claim is rejected, the Respondent nº1 is ordered to pay USD 109.500 USD (net) plus 5% interest as of October 26, 2007, subsidiarily: 2. The decision of the Respondent nº 2’s Single Judge of the Player’s Status Committee is annulled and the case is referred back to FIFA for a decision about the merits of the case, while FIFA being ordered to obey the CAS’ opinion about the admissibility of the (counter)claim. 3. The Respondent shall bear all costs before FIFA and the CAS as well as the fees of the Appellant’s counsel in the CAS procedure. 21. On 26 August 2011, Borussia filed its Appeal Brief before the CAS. 22. On 7 September 2011, Boca, in light of the arguments raised and petitions made by the Appellant in its submissions, requested the CAS, among other issues, to render a preliminary award on jurisdiction. 23. On 13 September 2011, Borussia supported Boca’s request for a preliminary award on jurisdiction. 24. On 16 September 2011, FIFA agreed that the CAS rendered an award resolving the dispute arising out of the Cooperation Agreement. 25. On 20 September 2011, the CAS sent a letter to the parties noting their agreement concerning the issuance of a preliminary award on jurisdiction in the present case. 26. On 7 December 2011, Boca filed before the CAS written submissions concerning jurisdiction issues, in which it requested the CAS to: 1. Uphold FIFA’s decision to consider the so-called “collaboration agreement” outside the scope of the Players’ Status Committee. 2. Impose Borussia the total costs of this arbitration. 3. Impose Borussia a contribution towards our legal fees in connection to the preliminary award in the amount of CHF 10.000. 27. On 8 December 2011, FIFA filed before the CAS written submissions providing its position with regard to the present arbitration procedure, in which FIFA basically (i) confirmed its agreement to the CAS rendering an award resolving the dispute arising out of the Cooperation Agreement, (ii) reiterated that it would not allege with regard to substance of such agreement and (iii) requested that the costs of the present proceedings are imposed to the Appellant and that such Appellant is also ordered to cover all legal expenses of FIFA related to the present procedure. 28. On 15 December 2011, the CAS invited the parties to inform whether they preferred a hearing to be held concerning the jurisdiction issues or the issuance of an award on jurisdiction based on the parties’ written submissions. All the parties finally communicated that they preferred that the Panel rendered an award on jurisdiction based upon the parties’ written submissions. 29. On 29 December 2011 FIFA reiterated its position on the jurisdiction issues previously expressed in its letters dated 16 September 2011 and 8 December 2011. 30. On 16 January 2012, the Panel dealing with the present case was constituted as follows: Mr. José Juan Pintó (President of the Panel), Mr. Efraim Barak and Mr. Michele Bernasconi. 31. On 16 January 2012, Borussia filed new written submissions making some remarks on the jurisdiction issues based on a recent Decision of the Swiss Federal Court (case 4A_246/2011, decision dated 7 November 2011). These submissions were accepted by the Panel pursuant to article R57 of the Code of Sports-related Arbitration (the “CAS Code”). The Respondents were given a deadline to comment on such submissions and on the decision of the Swiss Federal Tribunal (hereinafter the “TF Decision”), which the parties did in due time. 32. On 23 April 2012, the Panel and the parties’ legal counsel informally discussed in a conference call on some procedural aspects of the case at stake, after which the CAS sent a letter to the parties in the following terms: “As explained during the conference call, in case the Panel decides that FIFA was competent to deal with both the transfer agreement of the Player F. and the cooperation agreement signed between the Appellant and the First Respondent, the Panel, under article R57 has two options: (i) Refer the case back to FIFA for a new analysis of the matter; (ii) Follow up the case at CAS level and issue a new decision on the merits. The CAS Court Office requests to the parties to inform, on or before 3 May 2012, their position with respect to the two options mentioned above. Finally, the parties are advised that the Panel shall communicate its decision related to the conduction of the present case, after having received the parties’ position on the above-mentioned queries, and having rendered a preliminary award on jurisdiction”. 33. The parties’ replies to the request made in the referenced letter of 23 April 2012 were the following: - Borussia stated its preference for this case being decided on the merits by the CAS. - Boca alleged that the case cannot be sent back to FIFA since the latter is not competent to deal with a dispute arising out of the Cooperation Agreement, and that the case cannot be handled by the CAS either as its involvement in this case would be understood as the one of a body of appeal of a non-competent court. If the Panel found that the precedent of the TF Decision is applicable to this case, the claim of the Appellant could be dealt with in another ordinary procedure before the CAS, but such claim cannot be resolved in this procedure via counterclaim. Therefore both options are inoperative for Boca. - FIFA sustained that even in the event that the CAS should consider that FIFA had jurisdiction over the Cooperation Agreement (quod non in FIFA’s view), it should directly deal with the dispute arising out of such agreement and pass a decision as to the merits. III. SUMMARY OF THE PARTIES’ POSITIONS WITH REGARD TO THE CAS JURISDICTION III.1 BORUSSIA 34. In Borussia’s view, FIFA should have admitted the counterclaim as article 22e) RSTP provides for FIFA competence in “Disputes between clubs belonging to different associations in cases that do not fall within the cases foreseen in a) and d)”, which is the case herein. 35. FIFA failed to take into account that the parties explicitly agreed to submit any disputes arising out of the Cooperation Agreement to FIFA jurisdiction (clause 6.6 of the Cooperation Agreement). The parties did so as they had in mind that the disputes within the football family shall be settled within the football family, using the juridical bodies of FIFA, as regards the binding principle imposed by article 64.2 of FIFA Statutes, which explicitly prohibits members of the football family to bring their disputes before the ordinary courts, unless specifically provided for in the FIFA Regulations. This right of the parties to agree upon FIFA jurisdiction in a manner that also binds FIFA is even recognized in the FIFA Commentary to the RSTP. 36. The wording of article 1.1 of the RSTP indeed refers to “players…and their transfer between clubs belonging to different associations”, but it does not establish that FIFA jurisdiction is limited to disputes arising out of transfers of particular players. Article 1.1 of the RSTP only defines the scope of such regulations, while the scope of jurisdiction is governed by a different article of the RSTP (article 22). This article 22 lists the cases in which FIFA jurisdiction is given, with no reference to the scope provided for in article 1.1 of the RSTP, and with no restriction to a set of cases. Consequently, said article 22e) shall be read as “(any) disputes” between clubs belonging to different associations, which is in line with FIFA’s general attitude to settle disputes within the football family and outside the ordinary courts. 37. In any case, FIFA in fact admitted that the Cooperation Agreement also provides regulations about the transfer of players, especially in clause 3 which deals over more than one page with such transfers. 38. The application of the position held in the TF Decision to the present case leads to the conclusion that at least the CAS has jurisdiction over the merits of the case, regardless if FIFA was right or wrong in denying jurisdiction for the counterclaim. In the case at stake, the parties contractually agreed on FIFA’s jurisdiction (clause 6.6 of the Cooperation Agreement), which reveals their wish to have all their disputes decided by such body, and not by the ordinary courts, with the consequence that the CAS was considered competent for the case of an invalid or inapplicable FIFA jurisdiction clause. 39. In conclusion, FIFA was wrong in denying the admissibility of the counterclaim. III.2 BOCA 40. In BOCA’s view, FIFA has no jurisdiction to deal with Borussia’s claim. In accordance with article 22e) RSTP, FIFA is competent to deal with certain disputes between clubs belonging to different associations, but not with any and all kind of disputes. This article shall be understood and interpreted in connection with article 1 RSTP, which defines the scope of the RSTP. On such basis, FIFA has only jurisdiction to deal with issues within the scope of the RSTP (player status, eligibility and transfers of players between clubs belonging to different associations). Article 49 of the FIFA Statutes confirms this. However, the Appellant’s claim is not related to any of these issues. It refers to an alleged breach of a services agreement (i.e. the Cooperation Agreement), which terms exceed the scope of the RSTP. 41. The extensive interpretation of article 22e) RSTP suggested by the Appellant would lead the bodies of FIFA to resolve all the disputes that may appear between two clubs of different associations, even when these disputes are connected to matters totally unrelated to FIFA’s jurisdiction, which is unfounded and contrary to the interpretation of the RSTP made by FIFA itself in the Commentary to the RSTP, that only refers to transfers and loans. 42. Therefore, for the RSTP being applicable, it is an essential condition that an international transfer agreement takes place, which is not the case herein. The Cooperation Agreement generated a frame that granted the possibility of concluding particular contracts between the parties (including those ruling the incorporation of players to one club or the other), but it neither foresees any specific transfer nor envisages a list of players that are subject to and consent their potential transfer. If the person subject to the transfer is not identified, the transfer does not exist. 43. The fact that the parties agreed in the Cooperation Agreement to submit their disputes to the jurisdiction of FIFA is irrelevant, as the extension of jurisdiction is only admissible in the territorial aspect, but never on account of the subject-matter. 44. The restriction of access to ordinary courts provided for in article 64.2 of FIFA’s Statutes is not applicable in issues not foreseen and dealt with by FIFA Regulations or when FIFA determines its own jurisdiction, as the one at stake. For this reason, the Cooperation Agreement is not affected such restriction. 45. Borussia’s counterclaim is also inadmissible as: - It neither derives from the same legal relationship grounding the claim (Transfer Agreement vs. Cooperation Agreement), nor has factual or legal connection with such claim. The Transfer Agreement and the Cooperation Agreement are unrelated contracts, refer to different issues, have a diverse purpose, and were not even concluded in the same moment. Therefore, the disputes arising out of the Cooperation Agreement shall be treated separately and in an own procedure, in which Boca may, if necessary, file a counterclaim for the compliance with the cash amounts payable by Borussia. - The debt of Borussia towards Boca is payable and recognized, while the alleged debt claimed by Borussia is not. Therefore, the referred debts are not compensable in these proceedings. 46. The TF Decision has no significant effect in this appeal as the case it refers to is different from the one at stake. In such case FIFA decided not to intervene because the claimant was not, under its regulations, a person authorized to appear before FIFA’s bodies, which led to discuss the jurisdiction of CAS ab origene in such matter which knowledge FIFA had declined. However in the present case the appeal filed by Borussia aims at modifying a decision on the substantive jurisdiction of the Players’ Status Committee. It is not that the parties are discussing the CAS jurisdiction, as it happened in the case dealt with in the TF Decision. In the present case it shall be determined whether or not FIFA was right when it decided to consider that the Cooperation Agreement was beyond or outside its substantive jurisdiction. The grounds of the referred TF Decision could serve as support for the initiation, by either party, of an ordinary procedure before the CAS based on the execution and termination of the Cooperation Agreement, but have no effect in the present proceedings. III.3 FIFA 47. According to FIFA, the Decision rightfully declines FIFA’s jurisdiction in the matter at stake for the reasons mentioned in its considerations II.4-7. The nature of the Cooperation Agreement is that of a services agreement which does not have to do with a specific loan or transfer of a particular player. Therefore such agreement falls outside the scope of the RSTP and thus, outside the scope of jurisdiction of FIFA competent decision-making bodies. 48. However, FIFA agrees that the CAS renders an arbitral award on the substance of the Borussia and Boca’s dispute as to the Cooperation Agreement. These clubs, which constitute indirect members of FIFA, have the right of having their disputes arising out of such agreement resolved by a judicial body, and given that FIFA is not competent to do so, they are required to refer them to arbitration in accordance with articles 64.2 and 3 of the FIFA Statutes, as the recourse to ordinary courts is prohibited. The Appellant and the First Respondent are, in any case, bound by a valid arbitration clause. This is besides in line with the view of the TF Decision. IV. LEGAL CONSIDERATIONS IV.1 THE OBJECT OF THE PRESENT AWARD 49. In light of the parties’ considerations and requests made in their written submissions, the Panel shall point out that the question to be resolved in the present award is whether the counterclaim filed by Borussia based on the Cooperation Agreement is admissible or not. This is not, at least strictly speaking, a matter of formal jurisdiction of the CAS in the sense of determining if the prerequisites of article R47 of the CAS Code are met or not (in fact the parties have accepted that the CAS has jurisdiction over the appeal filed by Borussia against the Decision), but a question of scope of the appeal, of which issues are to be dealt with and resolved in these proceedings. IV.2 THE EXISTING PROCEDURAL SITUATION 50. Before starting the legal analysis of the issues and arguments submitted by the parties in the matter of reference, the Panel deems convenient, for the sake of clarity, to recall the procedural scenario created by the parties, which may be summarized as follows: - Boca filed a claim before FIFA against Borussia requesting for the payment of 15% of the compensation paid by Club América de México for the transfer of the Player (USD 655.000). This claim is based on clause 6 of the Transfer Agreement. - In the same proceedings opened in FIFA, Borussia filed a counterclaim against Boca asking for the reimbursement of the amounts paid as regards the Cooperation Agreement (USD 765.000), and requested FIFA to set-off this higher amount with the one due by Borussia to Boca. - FIFA resolved in the Decision to accept Boca’s claim and not to admit Borussia’s counterclaim, alleging that it was not competent to deal with a counterclaim based on a services contract (the Cooperation Agreement). - Borussia appealed the Decision as it understands that the referred counterclaim is admissible, shall be accepted and thus, Boca should be ordered to pay Borussia the amount of USD 109.500 resulting from the set-off of the mentioned reciprocal credits. - All the parties have agreed that the Panel preliminarily issues a partial award on jurisdiction in which the aforementioned matters of admissibility of Borussia’s claim are clarified and resolved. IV.3 THE RELEVANT FIFA PROVISIONS AND THE COOPERATION AGREEMENT 51. Taking the above mentioned background into account, the Panel shall start its considerations by identifying (i) the relevant provisions of the RSTP (edition 2005, applicable at the time the claim was filed) for the resolution of the matter at stake and (ii) the object and purpose of the Cooperation Agreement. 52. Concerning the provisions of the RSTP, the Panel shall basically refer to the following ones: Article 1.1 (scope): These Regulations establish global and binding rules concerning the status of players, their eligibility to participate in Organised Football, and their transfer between clubs belonging to different Associations. Article 22 (FIFA competence): Without prejudice to the right of any player or club to seek redress before a civil court for employment-related disputes, FIFA is competent for: a) Disputes between clubs and players in relation to the maintenance of contractual stability (Art. 13 – 18) if there has been an ITC Request and if there is a claim from an interested party in relation to such ITC Request, in particular regarding its issuance, regarding sporting sanctions or regarding compensation for breach of contract; b) Employment-related disputes between a club and a player that have an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings and respecting the principle of equal representation of players and clubs has been established at national level within the framework of the Association and/or a collective bargaining agreement; c) Employment-related disputes between a club or an Association and a coach that have an international dimension, unless an independent arbitration tribunal guaranteeing fair proceedings exists at national level; d) Disputes related to Training Compensation (Art. 20) and Solidarity Mechanism (Art. 21) between clubs belonging to different Associations; e) Disputes between clubs belonging to different Associations that do not fall within the cases foreseen in a) and d). 53. With regard to the Cooperation Agreement, the Panel notes that it foresees several reciprocal commitments of the parties of diverse nature including, among other issues, the exchange of ideas and experience in the youth soccer field, the remittance of talents and trainers for integration in training programs, organisation of friendly matches and (cf. Clause 3 of the Cooperation Agreement) “transfer of soccer players from Boca to Borussia”. IV.4 THE APPLICABILITY OF THE REFERRED LEGAL AND CONVENTIONAL PROVISIONS IN CASU 54. The Panel takes note that the parties have different views on how the above mentioned FIFA provisions shall apply or interact in this particular case. 55. On one side, Borussia essentially holds that its claim is to be considered a dispute between clubs belonging to different Associations that do not fall within the cases foreseen in sections a) and d) of article 22, and thus, that pursuant to section e) of this article, which is drafted as an open clause that does not restrict the kind of disputes that may fall within its scope, FIFA is competent to deal with such claim. 56. On the other side, both Boca and FIFA contest such competence by basically stating that this article 22e) RSTP shall not be examined isolatedly but within the frame of the referred regulations considered on the whole, and mainly taking into account article 1.1 of RSTP, which defines the material scope of the RSTP. In their opinion, and following this reasoning, given that the Cooperation Agreement does not deal with issues concerning the status of players, their eligibility or the transfer of a specific player, FIFA cannot be competent to resolve disputes deriving from it. 57. In light of the above mentioned discrepancy, the Panel has analyzed the cited FIFA provisions and its applicability to the present case taking into account the nature of the Cooperation Agreement, the subsequent facts occurred and the actions taken by each of the parties in this case. 58. In the referred analysis, the Panel has firstly noted that the wording of article 22e) does not include limits, restrictions or precisions on the kind of disputes “between clubs belonging to different Associations that do not fall within the cases foreseen in a) and d)” comprised therein. Even if in the Commentary to the RSTP, FIFA intends to restrict such disputes to those deriving from loans and transfers (“FIFA is competent for … e) Disputes between clubs belonging to different associations in the event of a failure to respect a transfer or a loan contract”), it appears to be clear that the text of the referred article does not per se foresee such an express limitation or restriction. 59. The Panel shall also acknowledge that, at least in abstract, the claim of Borussia (German club) against Boca (Argentinean club) should be considered a “dispute between clubs belonging to different Associations that do not fall within the cases foreseen in a) and d)”. 60. This being said, it shall be also pointed out that (i) indeed, article 1.1 defines the scope of the RSTP, i.e. the matters on which such RSTP rules, namely the status of players, their eligibility to play and the transfer of players between clubs belonging to different associations, and (ii) it cannot be denied that article 22e) is part of the RSTP. 61. The above described situation, in the Panel’s view, could theoretically open a discussion on the coordination and joint interpretation of article 1.1 and article 22e) RSTP, which in fact has been brought by the parties in their respective written submissions. 62. Notwithstanding this, the Panel considers that in this particular case, given the nature and specificities of the Cooperation Agreement and the subsequent facts occurred after its signature, it is not necessary to enter into such a discussion, as even if one will accept that FIFA jurisdiction under article 22e) RSTP is limited to disputes concerning transfers or loans as Boca and FIFA hold, the Panel considers that in the present case, (i) the Cooperation Agreement, in a certain way and among other issues, certainly deals or has to do with transfers and (ii) Boca and Borussia somehow confirmed it in crossed correspondence exchanged as regards the Cooperation Agreement. 63. In particular, clause 3 of the Cooperation Agreement, which title is precisely “Transfer of soccer players from Boca to Borussia”, rules the right of Borussia to integrate players of Boca under certain conditions. The following paragraphs of the referred clause, which are self-explanatory in this respect, contain repeated references to transfers of players (emphasis added by the Panel): 2. In this connection it is planned for Borussia to receive the right and the option to integrate into its own professional team, during the term of this Cooperation Agreement and after a decision by Borussia, one – at least 18-year old – player from BOCA […], however two players for the 2006/2007 season. […]. Initially, these players shall receive firm agreements at Borussia as soccer professionals for one season, with Borussia assuming the costs for the compensation and the other obligations under labour law according to the official German statutes and the regulations of DFL Deutsche Fussball Liga GmbH (German Soccer League) for their stay in Germany. 3. BOCA’s making these players available in favor of Borussia for the period of a soccer season in German Soccer League shall be free for Borussia. No loan fee and no other compensation shall accrue. 4. After the end of the first season Borussia shall have the right to take over these players completely and permanently into its own team. Borussia must declare to BOCA in writing by May 15 of the first season whether the so transferred players, in each case, will be finally taken over by Borussia into its team, or whether they will return to BOCA from Borussia on June 30 of the respective season. In case of a turn to BOCA, Borussia shall owe BOCA nothing. In case Borussia declares to BOCA on time the final takeover of these players into its own team, all transfer and federative rights to these players shall pass from BOCA to Borussia. Simultaneously, 70 % of the economic rights of BOCA to these players shall pass to Borussia. For the passage of all transfer rights and all federative rights as well as passage of 70% of the economic rights Borussia shall pay BOCA a net amount of USD […] per player, payable ten days after the expiration of the transfer period on loan. Borussia must inform BOCA in writing about exercising its option vis-à-vis BOCA. […] 5. If, during the employment between the player finally taken over by Borussia and the latter, the transfer rights and the economic rights to the player are further assigned to another club and/or another natural person in Germany or abroad, Borussia, in this case, undertakes to pay 30% of the proceeds from the transfer compensation with such third party, which flows to Borussia itself, to BOCA. 6. In case Borussia does not exercise the agreed option and the player returns to Argentina to BOCA, Borussia undertakes to make all statements under association law for an immediate return of the player to BOCA and safeguard the rights of BOCA. In this case no costs and compensation shall accrue for Borussia. For this case the contracting parties BOCA and Borussia determine that all transfer and federative rights as well as all economic rights shall lie exclusively with BOCA for this case of the player’s return from Borussia to BOCA. 64. This right to integrate players granted to Borussia within the Cooperation Agreement was not a mere theoretical one. In practice, Borussia tried to exercise the mentioned right, tried to get transfers of Boca’s players as appears from the exchange of correspondence arisen out of the execution of the Cooperation Agreement. The following paragraphs of the letters mentioned below so reveals (emphasis added by the Panel): Letter of Borussia dated 16 May 2007: “In connection with our concluded Cooperation Agreement, Borussia Monchengladbach was given the opportunity to resort to players from your club, so that they may be deployed at Borussia Monchengladbach. For this reason, we ask you to let us know if there is a possibility to borrow the player M., […], for one year. We also ask you to list additional players that could be possibly be borrowed. To make it possible for the players to acclimatize in Germany, already before the beginning of the season and taking into account the transfer period (8/31/2007), it would be helpful to handle the transfer of a player to Borussia Monchengladbach as quickly as possible”. Letter of Borussia dated 4 June 2007: “In addition, we are once again inquiring about the possibility of a transfer of the player M. We had also addressed this question to you in our letter dated 5/16/2007”. Letter of Boca dated 3 July 2007: “We are addressing you in response to your letters concerning the Cooperation Agreement. We would like to respond in this regard: although you are right concerning our lack of response as well as concerning the player M. and the list of potential players that could play at your club, we do not agree with your statement in your letter dated June 4 that you received nothing in return from us to all. […] In terms of the player M.: we cannot transfer him, since he will be directly used as a substitution for one of our center backs, who is a regular player, in case of a possible transfer. Nevertheless, we are in the position to suggest the following players: E. (center back), S. (midfielder), A. (left midfielder), C. (key player), T. (center forward). Tomorrow, we will send you the address and the homepage where you can watch the personal profiles and videos of the abovementioned players, with the exception of the player C., for whom we need some time to be able to provide the corresponding video”. 65. In addition, it shall be emphasized that the Panel, after examining the Cooperation Agreement on the whole, is of the view that at least part of the collaboration to be exchanged between Boca and Borussia aimed at, or was thought to, provoking the execution of loans and transfers, and that part of the global price which Borussia committed to pay pursuant to clause 4 of the Cooperation Agreement was the consideration for such right to future transfers. 66. Moreover, this consideration of the Cooperation Agreement as a, at least partially, “transferrelated” agreement is also confirmed by the fact that the parties agreed in Clause 6 of such agreement that (i) “FIFA rules and regulations shall apply without limitation” (para. 4), and (ii) “For disputes in connection with this Agreement the contracting parties arrange for the competent FIFA bodies to have exclusive jurisdiction, although both contracting parties may submit the legally binding and final FIFA decisions, if necessary to CAS for review. Unless stated, the Parties establish their seat at the abovementioned places. Court and out-of court services effected to these places shall be deemed legally binding. For all legal disputes arising from this Agreement the Parties expressly arrange for the competent FIFA bodies based in Zurich/Switzerland to have jurisdiction” (para. 6). The Panel considers that it is difficult to hold that the Cooperation Agreement is a mere “commercial agreement” or “service contract”, not only because of the content of the Agreement itself, but also because it is neither logical nor reasonably understandable that the parties decided (i) that sporting regulations apply to a pure commercial agreement (“FIFA rules and regulations shall apply without limitation”) and (ii) to submit the resolution of their disputes to the FIFA bodies and to the CAS in appeal. This submission to sporting rules and sporting bodies brings the Panel to the conclusion that the correct interpretation of the will of the parties is that they wanted to submit disputes arising out the Cooperation Agreement to FIFA jurisdiction because of a sporting-related nature of the Cooperation Agreement and the fact that the Agreement referred to transfers of players. The will of the parties in this respect was, in the Panel’s view, clear: potential disputes were to be treated within sporting resolution disputes bodies. As determined also in the TF Decision, such a will has to be taken into account when deciding on jurisdiction. 67. Taking the above mentioned into account, the Panel considers that in the present case, FIFA had jurisdiction to deal with the counterclaim filed by Borussia and should have not declared it inadmissible. Whether if article 22e) RSTP is interpreted literally or systematically, the outcome in the present case is, in the Panel’s view, the same, as even accepting that the wording and sense of article 22e) only comprised disputes concerning transfers or loans, the Panel is satisfied that the Cooperation Agreement extensively rules on transfers and that the potential execution of transfers was one of the causes that moved the parties to conclude the Cooperation Agreement. 68. Finally, the Panel shall underline that even if the purpose and requests of both the claim and the counterclaim are to some extent different, there is a connection between them which justifies, in the Panel’s view, that the claim and the counterclaim are dealt with and decided in the same proceedings, mainly because the parties are the same in both claims, the contracts giving rise to the claim and to the counterclaim were signed not far in time (June 2006 vs. July 2006) and both of them refer in some way to transfer transactions. The fact that in one case the debt has been recognized by the debtor and that in the other the existence of the debt is disputed and still to be decided does not make a difference, in the Panel’s opinion, on the possibility of dealing with both claims in the same procedure. IV.5 DECISION 69. Therefore, in the Panel’s view, FIFA was competent, under article 22e) RSTP, to decide about the counterclaim filed by Borussia against Boca in the frame of the proceedings initially started by Boca, and thus the counterclaim was (and is) admissible in the proceedings. 70. This being said, the Panel shall recall that in its letter dated 23rd April 2012, it requested the parties to express their position on the follow-up of the proceedings in case it was decided that FIFA was competent to deal with both the Transfer agreement and the Cooperation Agreement, which the parties did in the terms mentioned in para. 33 of this award. 71. The Panel, after having examined the arguments submitted by the parties in this respect, has decided, in accordance with article R57 of the CAS Code, not to refer the case back to FIFA but to follow-up the case at CAS and issue a new decision on the merits of the case, with procedural directions to follow the issuance of the present Award in due time. ON THESE GROUNDS The Court of Arbitration for Sport rules: 1. The Court of Arbitration for Sport has jurisdiction to decide in the present proceedings also on the claim filed by Borussia VfL 1900 Mönchengladbach GmbH against Club Atlético Boca Juniors. 2. The present proceedings shall continue. 3. The costs connected with the present partial award shall be determined in the final award.