F.I.F.A. – Commissione per lo Status dei Calciatori (2012-2013) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2012-2013) – 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 15 August 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club T, from country B as “Claimant” against the club Club S, from country G as “Respondent” regarding a contractual dispute arisen between the parties and relating to the player M

F.I.F.A. - Commissione per lo Status dei Calciatori (2012-2013) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2012-2013) – 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 15 August 2012, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club T, from country B as “Claimant” against the club Club S, from country G as “Respondent” regarding a contractual dispute arisen between the parties and relating to the player M I. Facts of the case 1. On 1 June 2008, the country B club T (hereinafter: the Claimant) and the country G club S (hereinafter: the Respondent) signed a ”PRIVATE AGREEMENT” (hereinafter: the agreement) concerning the “free transfer” of the player M (hereinafter: the player) from the Claimant to the Respondent. 2. Article 1 of the agreement stipulated that “Club S [i.e. the Respondent] signed with the professional player M [i.e. the player] 4 years professional contract which will be valid from July 1st, 2008 to June 30, 2012”. 3. According to article 2 of the agreement ”Club S [i.e. the Respondent] for the above transaction (article 1) will pay to Club T [i.e. the Claimant]:  The amount of 11.750 net, the next days after the signature of this professional contract.  The amount of 2.500 € net on 01.06.2009 […]  The amount of 3.000 € net on 20.06.2010  The amount of 3.500 € net on 20.06.2011”. 4. According to article 4 of the agreement, “In case that during the period of the contract of the player with Club S [i.e. the Respondent], Club S sales the professional football player M [i.e. the player] in any team worldwide, then Club S must pay to the team Club T [i.e. the Claimant] the 30% of the amount after having deducted the expenses for the player until the moment of the sale”. 5. On 31 August 2010, the Claimant lodged a claim with FIFA against the Respondent for breach of contract and stated that after the conclusion of the agreement with the Respondent “according to which Club T [i.e. the Claimant] loaned the player to Club S [i.e. the Respondent] from 1 July 2008 to 30 June 2012”, it had concluded a five-year employment contract with the player valid from 30 June 2008 until 30 June 2013. -In this respect, the Claimant submitted to FIFA a copy of said contract which provided under clause 18 the following: “Penal clause - value in currency of country B / For country B: 6.000.000 - For abroad: E-10.000.000”. 6. Furthermore, the Claimant argued that on 11 August 2008, the relevant International Transfer Certificate (hereinafter: ITC) was issued by the country B Football Federation and sent to the country G Football Federation, in which “mention was made to the fact that the parties to the Private Agreement signed a special loan convention” in relation to the player, apparently valid from 1 July 2008 until 30 June 2012. 7. In this context, the Claimant explained that in spite of the “loan agreement” it claimed to have concluded with the Respondent, the latter and the player had signed a new employment contract valid until 31 December 2014 and that, consequently, “pursuant to this new employment contract, Club S [i.e. the Respondent] clearly breached the loan agreement passed on 01 June 2008 and valid until 30 June 2012”. 8. In light of the above, the Claimant stated that it had asked the Respondent for an explanation with regard to the extension of the player’s employment contract, to which the Respondent had answered stating that what the parties had concluded was a transfer agreement and not a loan agreement “for the reason that in the Private Agreement no reference is made to the word ‘loan’ and thus it was entitled to extend the employment contract of the player”. 9. In this respect, the Claimant held that the contract needed to be interpreted according to the “real and common intention of the parties to the contract” and that “the total amount of EUR 20,750 […] due for loan of the player for 4 years reflects without doubt the fact that the player was really on loan. Otherwise, Club T [i.e. the Claimant] would never have transferred the player for such a minor amount”. 10. In continuation, the Claimant argued that by extending the employment contract with the player, “Club S [i.e. the Respondent] took the unilateral option to acquire the player without the knowledge of Club T [i.e. the Claimant] and therefore breached evidently the loan agreement valid until 30 June 2012. As a consequence, the Respondent acquired the rights of the player and thus shall be considered liable to pay the amount stipulated in the penalty clause established on item 18 of the employment contract signed by and between Club T and Player M [i.e. the Player]. The total amount due is € 10.000.000” (cf. par. 5). 11. In conclusion, the Claimant deemed that the Respondent should be requested to pay a total amount of EUR 10,000,000, plus 5% interest per annum since 1 January 2010, as well as to reimburse any legal expenses to be determined ex equo et bono by FIFA. 12. On 21 February 2011, the Respondent responded to the Claimant’s claim and argued that it was ”obvious from the wording of the agreement” that the parties had agreed on the definitive transfer of the player. In this regard, the Respondent underlined that there was no reference in the agreement to the word ”loan” or ”temporary transfer” or anything else that could be interpreted as evidence that the player had been transferred to the Respondent on a loan basis. 13. Furthermore, the Respondent pointed out that the agreement contained a sell-on clause, and argued in this respect that “such a clause would never appear in a loan agreement, but only in an agreement for a regular, definitive and free from any condition transfer of a player”. 14. In relation to the transfer fee agreed, i.e. EUR 20,750, the Respondent argued that such an amount could not be considered as a ”minor” amount, since at the time of the transfer the player was “very young and unknown, coming from a small club”. 15. In continuation, with regard to the claimed amount of EUR 10,000,000, the Respondent argued that such an amount represented “the agreed penalty for the breach of a totally different and irrelevant contract” to which the Respondent was not a party, and, therefore, could not be bound by it. 16. In continuation, the Respondent rejected the allegation that “the terms of the alleged loan agreement were enclosed with the ITC request to country B Football Federation and that in the ITC issued by the country B Football Federation, mention is made to the special convention signed by and between the parties referring to the loan agreement”. In this respect, the Respondent argued that the only documents which were attached to the ITC request were a copy of the agreement and a copy of the employment contract signed between the Respondent and the player. 17. Moreover, the Respondent alleged that it had been informed by the country G Football Federation that the ITC issued by the country B Football Federation “was accompanied only by a copy of the private agreement of 1st June 2008 and nothing else and the player, of course, has been registered with Club S [i.e. the Respondent] by the country G Football Federation as a regular definite transfer and not of course as a loaned player”. In this respect, the Respondent provided as evidence a letter from the country G Football Federation confirming that the player was transferred and not loaned from the Claimant to the Respondent. 18. Finally, the Respondent stated that the document entitled “International Transfer, Special Convention”, enclosed by the Claimant, was never signed by the Respondent. 19. In light of all the foregoing, the Respondent requested that the claim be rejected in full. 20. On 24 March 2011, the Claimant reiterated its claim of EUR 10,000,000, plus interest as previously mentioned. In this respect, the Claimant argued that despite the fact that the agreement “does not mention the word ‘loan’ and some further common -but not mandatory- clauses, are not mentioned, parties’ true intention when signed such agreement was a merely loan of the player”. 21. Furthermore, with regard to the sell-on clause contained in the agreement, the Claimant argued that “according to article 10.3 of FIFA RSTP, ‘the club that has accepted a player on a loan basis is not entitled to transfer him to a third club without the written authorization of the club that released the player on a loan and the player concerned’”, and that “therefore, in the case that the Claimant authorizes the Respondent to transfer the player to another club, Claimant is then entitled to receive 30% of the amount agreed between Respondent and the third club for such transfer”. 22. With regard to the compensation, the Claimant argued that by extending the player’s employment contract without its consent, the Respondent “took unilateral option to acquire the player, breaching, therefore, the Private Agreement [i.e. the agreement]. […] Consequently the first employment contract signed by and between the player and Claimant was also breached without just cause. […] As a consequence and according to article 17 of FIFA RSTP, Respondent shall be considered jointly liable for the breach of the employment contract signed by and between Claimant and the player”. 23. On 26 April 2011, the Respondent presented its final comments to the Claimant’s last submission. In this respect, the Respondent argued that “all transfers are definite unless specified otherwise”. In fact, the argument of the Claimant that the word ‘definite transfer’ is also not included is totally wrong and aims to mislead, since no such reference is necessary. When the parties agree the transfer of the player, such transfer is always a normal definite transfer, unless there is an express provision that the transfer is a temporary one (i.e. a loan)”. 24. With regard to the breach of the agreement, the Respondent recalled that the employment contract between the Claimant and the player was signed on 30 June 2008, “that is, after the execution of the private agreement of 1st June 2008”. As a consequence, the Respondent argued that “if a party breached the Private Agreement of June 2008 [i.e. the agreement], the said party is the Claimant who first transferred the player to Club S [i.e. the Respondent] and then signed a new employment contract with the player, despite the fact that the player had already been transferred to the country G club [i.e. the Respondent] and thus the Claimant was not entitled to sign such a new contract”. 25. In continuation, the Respondent pointed out that the claim had been lodged only against it, “without lodging a claim against the player himself for the alleged breach”. 26. In this respect, the Respondent argued that “a claim against the player for breach of contract and a decision that will hold that the said player has indeed breach his contract without just cause and is liable to pay compensation for such breach, is a prerequisite of any joint liability of a club to pay the awarded compensation for breach of contract without just cause”. II. Considerations of the Single Judge of the Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) analysed whether he was competent to deal with the matter at hand. In this respect, he referred to art. 21 par. 2 and 3 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 31 August 2010, the Single Judge concluded that the current version, i.e. the 2008 edition, of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules) is applicable to the matter at hand. 2. Furthermore, the Single Judge of the Players’ Status Committee confirmed that, on the basis of art. 3 par. 1 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 f) of the 2010 edition of the Regulations on the Status and Transfer of Players, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to different associations. 3. Subsequently, 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 referred, on the one hand, to art. 26 par. 1 and 2 of the 2010 edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 31 August 2010. In view of this, the Single Judge concluded that the 2009 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand 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 of the Players’ Status Committee started by acknowledging the above-mentioned facts as well as the arguments and the documentation contained in the file. 5. In this respect, the Singe Judge reverted to the content of the agreement concluded between the Claimant and the Respondent and which was at the basis of the present claim. In particular, the Single Judge noted that the agreement stipulated that a total amount of EUR 20,750 was to be paid in different instalments by the Respondent to the Claimant in order to acquire the services of the player M. 6. Likewise, the Single Judge also noted that the agreement stipulated that, in case of the transfer of the player to another club, the Respondent would have the contractual obligation to pay to the Claimant 30% of the amount received “after having deducted the expenses for the player until the moment of the sale”. 7. In continuation, the Single Judge took note that, on the one hand, the Claimant, in its claim to FIFA, had argued that the Respondent had breached the agreement signed with the Claimant by concluding a new employment contract with the player and, as a result, requested compensation amounting to EUR 10,000,000 as provided for in the employment contract concluded between the Claimant and the player, whereas, on the other hand, the Respondent rejected the claim lodged against it, based on the argumentation that the employment contract concluded between the Claimant and the player in question was not binding since it considered itself not to be part of such employment contract. 8. Equally, the Single Judge observed that the parties disputed the interpretation of the agreement concluded between them. In this regard, the Single Judge acknowledged that, on the one hand, the Claimant was of the opinion that the player had been transferred on a loan basis to the Respondent for a period starting from 1 July 2008 until 30 June 2012, whereas, on the other hand, the Respondent argued that the player had been transferred definitively since it was clear from the wording of the agreement that the parties had the intention to transfer the player definitively. 9. After having carefully examined the parties’ positions, the Single Judge remarked that the Claimant had argued throughout the present proceedings that as the Respondent had “breached evidently the loan agreement valid until 30 June 2012” and had “acquired the rights of the player”, it should be considered “liable to pay the amount stipulated in the penalty clause established on item 18 of the employment contract signed by and between Club T [i.e. the Claimant] and Player M [i.e. the player]”. In other words, the amount that the Claimant was claiming from the Respondent for having allegedly breached their agreement of 1 June 2008, was an amount mentioned in a penalty clause contained in the employment contract that had been concluded between the Claimant and the player. 10. In view of the above and considering that the claim of the Claimant in front of FIFA had only been lodged against the Respondent, the Singe Judge held that the Claimant’s claim had therefore been filed against the wrong party. In this context and while referring to the provisions contained in the Regulations, the Single Judge further added that the aforementioned penalty clause only concerned the contractual relationship between the Claimant and the player and thus could not form the basis of a claim solely addressed against the Respondent. 11. Having established the abovementioned and for the sake of completeness, the Single Judge went on to analyse if it could be concluded that the Respondent had nevertheless breached the agreement it had signed with the Claimant on 1 June 2008 and the consequences of such a possible breach. In doing so, the Single Judge reverted to the arguments raised by the Claimant and underlined that the latter deemed that although the agreement did “not mention the word loan and some further common -but not mandatory- clauses”, the intention of the parties had never been to transfer the player to the Respondent on a definitive basis and that, consequently, by keeping the player, the Respondent had breached the agreement. 12. In view of the documentation on file and, in particular, on the basis of the wording of the agreement, the Single Judge concluded that the parties’ real intention when signing the agreement must have been to transfer the player from the Claimant to the Respondent on a definitive basis and, consequently, not on a loan basis as argued by the Claimant. In this respect, the Single Judge arrived at his conclusion for the following reasons. 13. First of all, the Single Judge held that the period of four years stipulated in the agreement, i.e. 1 July 2008 to 30 June 2012, did not prove that the alleged loan would last for that period of time and only concerned the duration of the employment contract that the Respondent had already signed with the player. In this respect, the Single Judge added that, in any case, a time span of four years is unusually long for a transfer on a loan basis. 14. Secondly, the Single Judge underlined that the agreement did not provide for the obligation of the player to come back to the Claimant after the expiry of the period set forth in said agreement, i.e. after 30 June 2012. 15. Thirdly, the Single Judge pointed out that article 4 of the agreement provided for a sell-on clause in case the player was subsequently transferred to another club. In this respect, the Single Judge was eager to stress that such clause would only make sense in the context of an agreement for the definitive transfer of a player. 16. Fourthly, the Single Judge noted that the “Special Loan Convention” which was apparently mentioned at the time the ITC of the player was issued by the country B Football Federation to the country G Football Federation, was in fact a document only signed between the Claimant and the player, to which the Respondent was not a party. Consequently, such a document could not demonstrate that the Respondent had accepted the player on a loan basis. 17. In view of all of the aforementioned considerations, the Single Judge concluded that the claim of the Claimant has to be rejected in its entirety. 18. 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 proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of currency of country H 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. 19. In respect of the above and taking into account that the claim of the Claimant has been rejected, the Single Judge concluded that the Claimant has to bear the costs of the current proceedings before FIFA. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 10,000,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 20. In conclusion, and in view of the circumstances of the present matter as well as the fact that the case was decided by the Single Judge and not by the Players’ Status Committee in corpore and that did not pose any particular factual difficulty, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 15,000. Consequently, the Single Judge of the Players’ Status Committee decided that the amount of currency of country H 15,000 has to be paid by the Claimant in order to cover the costs of the present proceedings. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club T, is rejected. 2. The costs of the proceedings in the amount of currency of country H 15,000 are to be paid by the Claimant, Club T. Given that the latter already paid an amount of currency of country T 5,000 as advance of costs at the start of the present proceedings, the Claimant, Club T, has to pay the amount of currency of country T 10,000, within 30 days as from the notification of the present decision, to the following bank account with reference to case nr. XX-XXXXX: Note relating to the motivated decision (legal remedy): According to article 67 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 Jérôme Valcke Secretary General Encl. CAS Directives