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 21 January 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club E, from country F as Claimant against the club, Club C, from country I as Respondent regarding a contractual dispute between the parties and relating to the player Y

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 21 January 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club E, from country F as Claimant against the club, Club C, from country I as Respondent regarding a contractual dispute between the parties and relating to the player Y I. Facts of the case 1. On 31 August 2010, Club E from country F (hereinafter: Claimant) and Club C, from country I (hereinafter: Respondent) concluded a transfer agreement (hereinafter: the agreement) for the transfer of the player Y (hereinafter: the player) from the Claimant to the Respondent. 2. Article 2.1 of the agreement provided that a total amount of EUR 1,000,000 was to be paid by the Respondent to the Claimant in two instalments as follows: “ • €500,000.00 (five hundred thousand EUROS) minus 5% Solidarity fee of € 25,000.00 (twenty five thousands EUROS) at the execution of this agreement. • €500,000.00 (five hundred thousand EUROS) minus 5% Solidarity fee of € 25,000.00 (twenty five thousands EUROS) on 1st July 2011. The payment of the second instalment shall be guaranteed by a first demand bank guarantee approved by Club E that Club C shall deliver within forty days from the date hereof. Should Club C do not provide such bank guarantee then the sums due as Second Instalment shall become immediately due and payable.” 3. Art. 2.2 of the agreement states the following “Contingent Payments”: “ a. € 100,000.00 (one hundred thousand EUROS) minus 5% Solidarity fee of €5,000.00 (five thousand EUROS) upon the player making his 10th (tenth) First Team Competitive Appearance, for at least 25 minutes each, for Club C. b. € 100,000.00 (one hundred thousand EUROS) minus 5% Solidarity fee of €5,000.00 (five thousand EUROS) upon the player making his 15th (fifteenth) First Team Competitive Appearance, for at least 25 minutes each, for Club C. c. € 100,000.00 (one hundred thousand EUROS) minus 5% Solidarity fee of €5,000.00 (five thousand EUROS) upon the player making his 20th (twentieth) First Team Competitive Appearance, for at least 25 minutes each, for Club C. d. € 300,000.00 (three hundred thousand EUROS) minus 5% Solidarity fee of €15,000.00 (fifteen thousand EUROS) if Club C, at the end of the season 2010/2011, will be still in the Serie A for Season 2011/2012 (no relegation). (…)” 4. On 25 October 2010, the Claimant lodged a claim with FIFA against the Respondent and requested, after amending its claim, from the latter the amount of EUR 1,330,000, being an amount of EUR 950,000 (EUR 1,000,000 - 5% solidarity contribution) according to art 2.1 of the agreement as well as the contingent payments, a) for an amount of EUR 95,000 (EUR 100,000 - 5% solidarity contribution) and d) EUR 285,000 (EUR 300,000 - 5% solidarity contribution), as the stipulations for these contingent payments have allegedly been met. 5. In this respect, the Claimant claimed that despite having reminded the Respondent of its obligation to pay the amounts, the Respondent has not fulfilled its contractual obligations. 6. In its reply, the Respondent states that the transfer of the player between the parties was based on the assumption that the player was born in country G and had a country G passport, considering the possibility that the player could be nominated to play for the country G national team. However, the player also had a country H passport and was called by the country G national team on 29 September 2010, of which the “logistics of the country G nominations are, for the club/Club C, much more complicated than the ones about the country F nominations. If Club/Club C had been informed about this obligation, surely it would not have transferred the player from Club E.” 7. Moreover, the Claimant allegedly verbally assured that if the first instalment had been paid on time it would not request a bank guarantee according to 2.1 of the agreement, which later the Claimant allegedly refused to do. After allegedly having agreed upon the provision of a “documentary credit”, the Claimant did not provide a template of the “documentary credit” to the Respondent where it could have paid the instalment, which it would have if it had been provided with it, and claimed the bank guarantee anyway. 8. Furthermore, the Respondent claims that it could “not pay the first instalment because it was a victim of the default of the television company (Dahlia) that broadcasts its home games. Because of this default, Club/Club C lost a relevant share of income and this lack of financial funds did not allow it to pay regularly its obligations towards the country F club.” 9. In its replica, the Claimant holds that the nationality and the possibility of the player to be selected for the country F national team was not part of the transfer agreement. In addition to that, the player was called for the national team of country H before the agreement was made. 10. Also, the Claimant argues that it has never given the verbal promise to waive its right to receive a bank guarantee from the Respondent, as this was allegedly crucial when concluding the agreement. 11. Lastly, the Claimant asserts that the financial problems of the Claimant’s broadcasting company deem to be a problem which solely concerns the Respondent and couldn’t affect the Respondent’s contractual obligations in regard to the transfer of the player. 12. Despite having been invited to do so by FIFA, the Respondent did not provide its final position. 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 which Procedural Rules are applicable to 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; hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 25 October 2010. Therefore, the Single Judge concluded that the 2008 edition of the Procedural Rules is applicable to the matter at hand. 2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players was 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 25 October 2010. In view of this, the Single Judge concluded that the 2010 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) are applicable to the case at hand as to the substance (cf. art. 26 par. 1 and 2 of the Regulations). 3. Furthermore, the Single Judge 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 lit. f) of the Regulations, he was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to two different associations. 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 and first of all, the Single Judge noted that it was undisputed between the Claimant and the Respondent, that, on 31 August 2010, an agreement had been concluded, pertaining to the transfer of the player from the Claimant to the Respondent. 6. Likewise, the Single Judge acknowledged that the Claimant lodged a claim against the Respondent, based on clauses 2.1 and 2.2 of the aforementioned agreement, eventually requesting payment of an amount of EUR 1,330,000 as outstanding transfer compensation, being an amount of EUR 950,000 (EUR 1,000,000 - 5% solidarity contribution) according to art 2.1 of the agreement as well as the contingent payments according to art. 2.2 a) of the agreement for an amount of EUR 95,000 (EUR 100,000 - 5% solidarity contribution) and according to art. 2.2 d) for an amount of EUR 285,000 (EUR 300,000 - 5% solidarity contribution). 7. The Single Judge also noted that the Respondent rejected the claim lodged against it, based on the argumentation that said agreement was signed on the erroneous assumption that the player had a French passport only and was hence eligible to play for the country G national team only, whereas he also had a country H passport and was therefore eligible for the country H national team as well. In this context, the Respondent stressed that the nomination and participation of the player in the Africa Cup of Nations tournament would be connected with much more logistical and factual risks for both, the player and the Respondent, which is why, had the Respondent known about these facts, it would have never signed the player. 8. The Single Judge further noted that, according to the Respondent, the Claimant had verbally assured to not request a bank guarantee for the second instalment of the agreement, should the Respondent pay the first instalment on time, which the Claimant later allegedly refused to do by claiming said bank guarantee anyway. 9. In addition to that, the Single Judge recognised that the Respondent held that its failure to pay the first instalment of the agreement was not its fault, as it was supposed to receive payment from the television company which broadcasts the Respondent’s home games, which was in default itself. In this regards, the Respondent indicates that “this lack of financial funds did not allow it to pay regularly its obligations towards the country F club”. 10. Equally, the Single Judge acknowledged the Claimant’s replica in which it argued that the player’s nationality and his eligibility for a national team were not part of the agreement. Furthermore, the Claimant added that the player was already called for the country H national team before the agreement was made. In this regard, the Claimant held that the Respondent must have known about these circumstances before signing the transfer agreement and the employment contract with the player. 11. Moreover, the Single Judge took note that the Claimant objected the Respondents allegations regarding the abovementioned bank guarantee, as it allegedly never waived its right to obtain such guarantee. 12. The Single Judge lastly acknowledged the Claimant’s opinion that the Respondent’s financial problems with its television broadcaster should solely concern the Respondent and should not affect the Respondent’s contractual obligations in regards to the transfer of the player. 13. Consequently, the Single Judge went on to establish whether the Respondent’s expectation that the player was only eligible to play for the country F national team, the Claimants alleged waiver of a bank guarantee or the Respondents financial problems with its television broadcaster could affect its contractual obligations in connection with art. 2.1 and 2.2 of the transfer agreement. 14. In doing so, the Single Judge carefully studied the wording of clause 2.1 and 2.2 of the agreement and, in particular, the relevant payment obligations. In this respect, the Single Judge noted that the agreement did not provide any stipulations regarding the player’s nationality or his eligibility to play for any national team. In the light of this, the Single Judge took the view that an expectation solely inherent to one contractual party without having found its way into the actual agreement itself could not affect this party’s contractual obligations towards the other party. 15. In continuation, the Single Judge noted that the Respondent has not provided any documentary proof for the Claimant’s alleged verbal waiver of its right to request and receive a bank guarantee for the payment of the second instalment of the transfer compensation, as it was stipulated in art. 2.1 of the agreement. Equally, the Single Judge was eager to underline that the abovementioned bank guarantee, which was apparently never issued by the Respondent, had no immediate or direct influence on the contractual obligations of the parties as stipulated in the transfer agreement. Against such background, the Single Judge did not find it necessary to find a decision regarding such bank guarantee. 16. Lastly, the Single Judge agreed with the Claimant’s line of argument that the Respondent’s internal problems with the television broadcaster of its home games and the broadcaster’s debts towards the Respondent, could not concern the Respondent’s contractual obligations regarding the payment of the transfer compensation and the contingent payments in connection with the transfer of the player from the Claimant to the Respondent. 17. In view of all the above, taking into consideration all the surrounding circumstances of this specific matter as well as the documentation presented during the proceedings, but in particular art. 2.1 and 2.2 of the transfer agreement itself, the Single Judge concluded that the conditions of the transfer agreement have been met and, thus, the Claimant is entitled to receive the transfer compensation from the Respondent as stipulated in art. 2.1 and 2.2 of said agreement. 18. As the result of the above, the Single Judge decided to accept the Claimant’s claim and to award him the amount of EUR 1,330,000 as transfer compensation for the transfer of the player from the Claimant to the Respondent. 19. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the Players’ Status Committee including its Single Judge, costs in the maximum amount of currency of country C 25’000 are levied. The relevant provision further states that the costs are to be borne in consideration of the parties’ degree of success in the proceedings (cf. art. 18 par. 1 of the Procedural Rules). 20. In respect of the above, and taking into account that the claim of the Claimant has been accepted, the Single Judge concluded that the procedural costs are to be borne by the Respondent. 21. According to Annex A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. 22. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 1,330,000 related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country C 25,000 (cf. table in Annex A). 23. Considering that the case at hand and taking into account that the claim of the Claimant has been accepted as well as the complexity of the case, the Single Judge determined the costs of the current proceedings to the amount of currency of country C 20,000. 24. In this respect, the Single Judge took into account that the Claimant had already paid an advance of costs in the amount of currency of country C 5,000 in accordance with art. 17 of the Procedural Rules. 25. In view of all of the above, the Single Judge concluded that the amount of currency of country C 20,000 has to be paid by the Respondent to cover the costs of the present proceedings. Thereof, the amount of currency of country C 15,000 has to be paid by the Respondent to FIFA and the amount of currency of country C 5,000 directly to the Claimant. III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club E, is accepted. 2. The Respondent, Club C, has to pay to the Claimant, Club E, the amount of EUR 1,330,000, within 30 days as from the notification of this decision. 3. If the aforementioned sum is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of expiry of the time-limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee, for consideration and a formal decision. 4. The final amount of costs of the proceedings in the amount of currency of country C 20,000 is to be paid by the Respondent, Club C, within 30 days as from the notification of the present decision as follows: 4.1 The amount of currency of country C 15,000 has to be paid to FIFA to the following bank account with reference to case nr. XX-XXXXX: 4.2 The amount of currency of country C 5,000 has to be paid directly to the Claimant, Club E 5. The Claimant, Club E, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances are to be made and to notify the Single Judge of the Players’ Status Committee of every payment received. ** Note relating to the motivated decision (legal remedy): According to art. 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