F.I.F.A. – Commissione per lo Status dei Calciatori (2011-2012) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2011-2012) – club vs. club disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 30 January 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club A, from country K as “Claimant” against the club Club B, from country L as “Respondent” regarding a contractual dispute between the parties, and relating to the player R

F.I.F.A. - Commissione per lo Status dei Calciatori (2011-2012) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2011-2012) – club vs. club disputes – official version by www.fifa.com – Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 30 January 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club A, from country K as “Claimant” against the club Club B, from country L as “Respondent” regarding a contractual dispute between the parties, and relating to the player R I. Facts of the case 1. On 27 January 2009, Club A, from country K (hereinafter: the Claimant) and Club B, from country L (hereinafter: the Respondent) signed a contract “to conclude the transfer of (100%) economic, financial federative rights” (hereinafter: the contract) for the player R (hereinafter: the player), from the Claimant to the Respondent. 2. According to art. 2 of the contract, the Respondent had to pay the Claimant the total amount of USD 3,050,000 “for buying the federative and economic rights” of the player, as follows: a) USD 1,050,000 upon signing the contract; b) USD 1,000,000 on 30 March 2009; c) USD 1,000,000 on 30 May 2009. 3. Art. 6 of the contract provided that “The final transfer of the player will be executed upon the final payment due to Club A dated 30/05/2009. However if Club B will not pay the second or the third instalment, then a tolerance time of seven days will be given, and if Club B failed again then the contract will be cancelled and the football player freed in 48 hours and will immediately return to Club A and no money will be returned”. 4. On 1 June 2009, the Claimant lodged a claim with FIFA against the Respondent, claiming that the latter had failed to pay the second and third instalments stipulated in the contract and amounting to a total of USD 2,000,000. 5. The Claimant stated that on 29 April 2009, it had sent a letter to the Respondent requesting the “devolution of the player’s rights” in accordance with art. 6 of the contract, which according to the Claimant, had remained unanswered. Furthermore, the Claimant explained that on 29 May 2009, it had sent another letter to the Respondent, requesting the full payment of the two last instalments, but had not received any answer from the Respondent. 6. In light of the above, the Claimant requested from the Respondent the amount of USD 2,000,000, plus an interest rate of 5% per year, “calculated since the date in which each of the instalments became due”. 7. On 1 July 2009, the Respondent provided its response to the Claimant’s claim. In this respect, the Respondent stated that, by means of a letter dated 2 June 2009, it had informed the Claimant that it renounced to the permanent transfer of the player, confirming that “all the rights of the player belong exclusively to Club A, a position, which had, according to the Respondent, been confirmed by the Claimant in a subsequent letter dated 10 June 2009. 8. In this regard, the Respondent stated that it “does not challenge at all that the player R federative, sporting and economic rights are entirely the ownership of Club A, since Club B has decided -as allowed and provided for by the contract- not to pay the second and third instalment, with the consequence that the loan agreement does not become a permanent transfer agreement”. 9. On 15 April 2010, the Claimant presented its comments to the Respondent’s response. In this respect, the Claimant argued that the Respondent has never had the right to renounce to the definitive transfer of the player. According to the Claimant, the contract clearly showed that the intention of the parties was to transfer the player on a permanent basis and that therefore, “It was not a loan”. 10. In continuation, the Claimant argued that due to the Respondent’s incapacity to present financial guarantees for the transfer fee, “the sole possibility found by the parties in case of default from Club B was the obligation to return the player’s rights to country K. Therefore, the return of the player’s rights was not a unilateral option of Club B but in fact was the only way to protect Club A from any default of Club B”. In this respect, the Claimant argued that the Respondent had not respected the time limits agreed and that it “has never paid the second and third instalments and has never returned the player’s rights”. 11. The Claimant further stated that in order to protect its rights, it had therefore asked the Respondent for the return of the “player’s rights” and for the payments of the outstanding instalments. In this respect, the Claimant stated that on 2 June 2009, the Respondent had responded to its letters, stating that due to the “unsatisfactory sporting performances of player R [i.e. the player], Club B has decided not to transfer the player on a permanent basis. Consequently, pursuant to the article 6 of the contract (and within the ‘tolerance time’ provided by this article), please consider that ‘the contract will be cancelled and the player freed in 48 hours and will immediately return to C and no money will be returned”. 12. In this regard, the Claimant argued that the Respondent had not respected the terms of the contract, as “the transfer contract does not allow Club B to terminate the player’s contract by unsatisfactory sporting performances” and because “the tolerance time agreed for default had passed on 6 April 2009 (7 days after the expiring date of the second payment - 30 March 2009)”. 13. In continuation, the Claimant stated that it had also lost “the rights of the player”, as the latter had apparently refused to return to the Claimant after being released by the Respondent and had subsequently signed a contract with the Club C, from country K and, later on, with the Club D, from country K. 14. On 27 April 2010, the Respondent presented its final position on the Claimant’s comments and argued that it had fulfilled its obligation to release the player “with due information to Club A on 2 June 2009 […] within the tolerance time of seven days […] since the notice to pay was served (i.e. the tolerance time ‘was given’) by Club A through it counsel’s letter dated 29 May 2009”. 15. Furthermore, the Respondent stated that it was only on 22 July 2009 that the Claimant had asked the country K Football Federation to request the player’s International Transfer Certificate from the country L Football Association. Therefore, the Respondent concluded that “the very fact that an international transfer certificate was made on 22 July 2009 (and not opposed by Club B) establishes, per se, that it is not because of Club B that the player did not return to Club A but out of his own will”. 16. In view of all of the above, the Respondent asked FIFA to reject the claim of the Claimant in its entirety. 17. On 9 September 2011, the country K Football Federation provided FIFA with the player passport of the player from which it can be established that the player was, after his transfer to the Respondent on 12 February 2009, registered with Club C from 11 August 2009 until 31 December 2009 and with Club D from 1 January 2010 until 7 March 2011. On 21 March 2011, the player was transferred to the Club E, from country M and loaned to the Claimant on 18 July 2011 for a year. II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: the Single Judge) analysed whether he was competent to deal with the matter in 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 (edition 2008). Consequently, and since the present matter was submitted to FIFA on 1 June 2009, the Single Judge concluded that the current edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2008; hereinafter: the Procedural Rules) is applicable to the present matter (cf. art. 21 of the Procedural Rules). 2. Subsequently, the Single Judge referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 in combination with art. 22 lit. f and art. 23 par. 3 of the Regulations on the Status and Transfer of Players (edition 2010), the Single Judge is competent to deal with the matter at stake, which concerns a dispute between two football clubs affiliated to different associations. 3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and 2 of the 2010 and 2009 edition of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged with FIFA on 1 June 2009, the 2008 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter as to the substance. 4. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started by acknowledging the above-mentioned facts, as well as the arguments and the documentation submitted by the parties. 5. In this respect, the Single Judge underlined that on 27 January 2009 the Claimant and the Respondent had signed a contract for the transfer of the player for an amount of USD 3,050,000, payable in three instalments as follows: a) USD 1,050,000 upon signing the contract; b) USD 1,000,000 on 30 March 2009; c) USD 1,000,000 on 30 May 2009. 6. Furthermore, the Single Judge noted that art. 6 of the contract provided that the “final transfer of the player will be executed upon the final payment due to the Club A dated 30/05/2009” and that if the Respondent failed to pay the second or the third instalment, i.e. the instalment of USD 1,000,000 due on 30 March 2009 and the instalment of 1,000,000 due on 30 May 2009, “then a tolerance time of seven days will be given, and if Club B failed again then the contract will be cancelled and the football player freed in 48 hours and will immediately return to Club A and no money will be returned”. 7. In continuation, the Single Judge referred to the main arguments of the parties and noted that the Claimant had argued that the Respondent had breached the contract, since the latter had failed to pay the second and third instalments stipulated in the contract. Furthermore, the Claimant argued that the Respondent had never had the right to renounce to the definitive transfer of the player as the contract clearly expressed that the intention of the parties was to transfer the player on a permanent basis and that therefore, “It was not a loan”. Consequently, the Claimant deemed that the Respondent should be requested to pay the Claimant an amount of USD 2,000,000, plus an interest rate of 5% per year. 8. As for the Respondent, the Single Judge noted that the latter had argued that it had informed the Claimant that it renounced to the permanent transfer of the player, confirming that “all the rights of the player belong exclusively to Club A” as it had decided “as allowed and provided for by the contract” not to pay the remaining instalments, “with the consequence that the loan agreement does not become a permanent transfer agreement”. Therefore, the Respondent asked FIFA to reject the claim of the Claimant in its entirety. 9. In view of the above and as a preliminary remark, the Single Judge noted that the present dispute centred on the interpretation of art. 6 of the contract, and in particular, the question of whether the terms of the said article entitled the Respondent to renounce to the transfer of the player on a permanent and definitive basis. 10. With this in mind, the Single Judge analysed the overall content of the contract and concluded that, on the face of it, the parties had initially agreed that the player would be transferred to the Respondent on a permanent basis. The Single Judge, however, remarked that the parties had also specified in art. 6 of the contract that “The final transfer of the player”, i.e. the transfer of the player on a permanent basis, “will be executed upon the final payment due to Club A dated 30/05/2009”. Furthermore, the same article also provided that in the event that the Respondent would not pay the “second or the third instalment”, i.e. the instalment due on 30 March 2009 and on 30 May 2009 respectively, a period of seven days would be granted and if the Respondent failed again to pay one of the instalments in question after the expiry of the said timeframe, ”the contract will be cancelled and the football player freed in 48 hours and will immediately return to Club A and no money will be returned”. 11. Based on the wording of art. 6 of the contract, the Single Judge held that since the transfer of the player would only become definitive upon payment of the last instalment due on 30 May 2009 and as the parties had specifically agreed that should the Respondent fail to pay the second or third instalment the contract would be “cancelled” and the player would go back to the Claimant within 48 hours, it had therefore to be concluded that the said article entitled the Respondent to renounce to the transfer of the player on a permanent basis, if it so wished. 12. Moreover, the Single Judge was eager to point out that the part of the art. 6 of the contract which read that “the contract will be cancelled […] and no money will be returned” clearly indicated that in case the second or third instalment was not paid by the Respondent, the Claimant would still be left with over one third of the total transfer amount, i.e. USD 1,050,000, as compensation for the period of time the player would eventually play for the Respondent. This, according to the Single Judge, clearly demonstrated that the parties had agreed that the player would be considered to be on loan with the Respondent until the last instalment was paid by the latter and that consequently, the condition for the player to be definitively transferred to the Respondent was the payment of all the instalments provided in art. 2 of the contract. 13. Having established the above, the Single Judge went on to ask the question whether the Respondent had any obligation towards the Claimant under art. 6 following its decision not to pay the second and third instalments under the contract and, in particular, whether the Respondent had, as the Claimant had phrased it, “the obligation to return the player’s rights to country K”. In this respect, the Single Judge was of the opinion that the Respondent had no means to force the player to go back to his previous club if the latter was unwilling to do so and further added that the Claimant had itself acknowledged that the player had “refused to return to Club A” after his release by the Respondent. It was therefore unrealistic to assume that the Respondent had an obligation to make sure that the player went back to the Claimant. 14. Furthermore, the Single Judge underlined that shortly after the Respondent had failed to pay the second instalment, both clubs had recognised in their different exchange of correspondence that the “rights of the player belong exclusively to Club A” but that the Claimant alleged to have asked the Respondent for the “devolution of the player’s rights” on many occasions apparently without success. In this respect, and while reiterating that the Respondent could not have obliged the player to go back to the Claimant, the Single Judge argued that instead of insisting on the “devolution of the player’s rights”, the Claimant should simply have requested its association to ask for the issue of the International Transfer Certificate (ITC) of the player soon after “the tolerance time agreed for default had passed on April 2009 (7 days after the expiring date of the second instalment - 30 March 2009)”. As a matter of fact, the Claimant had only asked the country K Football Federation to request the ITC of the player on 22 July 2009, almost four months after the Respondent could have requested it. 15. In view of all the above-mentioned considerations, the Single Judge concluded that the Respondent had legitimately renounced to the definitive transfer of the player on the basis of art. 6 of the contract and therefore, the Claimant should not be entitled to the second and third instalments under the contract. Consequently, the Single Judge decided to reject the claim of the Claimant in its entirety. 16. Finally, 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 the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of currency of country O 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. 17. 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. The amount in dispute to be taken into consideration in the present proceedings is USD 2,000,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country O 25,000. 18. Considering that the case at hand did not pose particular factual difficulty and was adjudicated by a Single Judge and not by the Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of currency of country O 10,000 and held that such costs have to be borne by the Claimant. 19. In conclusion, the Claimant has to pay the amount of currency of country O 10,000 to cover the costs of the present proceedings. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club A, is rejected. 2. The costs of the proceedings in the amount of currency of country O 10,000 are to be paid by the Claimant, Club A. However, given that the latter has already paid the amount of currency of country O 5,000 as advance of costs at the start of the present proceedings, Club A has to pay the amount of currency of country O 5,000 within 30 days as from the notification of the present decision to the following bank account, with reference to case nr. XX-XXXX: Note relating to the motivated decision (legal remedy): According to article 63 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Single Judge of the Players’ Status Committee: ______________ Markus Kattner Deputy Secretary General Encl.: CAS directives