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 19 March 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club V, from country S as Claimant/Counter-Respondent against the club, Club S, from country I as Respondent/Counter-Claimant regarding a contractual dispute between the parties and relating to the player L

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 19 March 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club V, from country S as Claimant/Counter-Respondent against the club, Club S, from country I as Respondent/Counter-Claimant regarding a contractual dispute between the parties and relating to the player L I. Facts of the case 1. On 27 January 2010, Club V, from country S (hereinafter: the Claimant) and the Club S, from country I (hereinafter: the Respondent) concluded a transfer agreement (hereinafter: the agreement) for the loan of the player L (hereinafter: the player) from the Claimant to the Respondent. 2. The agreement provided a loan fee of EUR 350,000, a term until 30 June 2010 as well as the following stipulation: (Suspensive condition) The conditions precedent to the Agreement is signed between Club S and Footballer of an economic contract, as well as the fact that the player succeeds the related medical visit to City R made by physicians of Club S. 3. On 27 January 2010, the player and the Respondent signed an employment contract. 4. Between 27 January 2010 and 29 January 2010, the player participated in the obligatory medical test where the doctors of the Respondent diagnosed a hypertension of third grade which, according to the responsible doctor, made him “not fit for the practice of competitive sport” as “these conditions could produce at any time, present or future, a high risk of cerebrovascular accidents.” 5. On 29 January 2010, the doctor responsible for the medical test informed the player’s agent F and the Claimant’s team doctor, Mr J that he did not deem the player fit to play. 6. On 2 February 2010, the player tried to participate in a training session on the Respondent’s training grounds, but the Respondent refused this and informed the player again that he was not fit to practice. On 3 February 2010, the Respondent bought a ticket for the player to fly back to country S. 7. On 15 February 2010, another medical test was run on the player by the medical team of the Claimant, concluding that the player was fit to play professional football. On 19 February 2010, the player signed for the Club P. 8. On 20 July 2011, the Claimant lodged a claim at FIFA, claiming compensation from the Respondent because of an alleged breach of the agreement by the Respondent, for the amount of EUR 350,000 plus 5% interest p.a. on the amounts due to the Claimant from the date of the breach of the agreement. The Claimant also claims that Club S should cover the costs of the proceedings, including the Claimant’s defence fees and costs. 9. In particular, the Claimant indicates that the medical test conducted by the Respondent was erroneous, as the abovementioned second medical test at the Claimant indicated that the player was fit to practice competitive sport. In this context, the Claimant indicates that the player is still participating in professional competitions without having any health problems. 10. Furthermore, the Claimant stresses that the player was sent back to country S only 48 hours before closure of the transfer window which allegedly was too late to find another club for the player. 11. Lastly, the Claimant states that making the validity of the agreement subject to a successful medical examination would imply a violation of art. 18 par. 4 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) and the CAS jurisprudence in the case CAS 2009/A/XXXX Club K / Club M & FIFA. 12. In its reply, the Respondent rejects that the medical test conducted by the Respondent’s medical team was erroneous, as it was based on highest medical standards and conducted by a team of experienced doctors. 13. Furthermore, the Respondent states that the player was not returned too late, since the agreement does not contain any reference to when the medical test should be performed or when the player should be returned. The fact that the Respondent bought a ticket for the player’s flight back should not indicate that the player’s return was within the Respondent’s responsibility. 14. In addition to that, the Respondent holds that loan agreements can be made subject to a medical examination, as art. 18 par. 4 of the Regulations only governs “special provisions relating to contracts between professionals and clubs”, whereas it does not mention the validity of transfer or loan agreements between two clubs. Consequently, the CAS jurisprudence regarding art. 18 par. 4 of the Regulations in respect to labour contracts between players and clubs should not be applicable to the present matter. Hence, the Respondent emphasized that the loan agreement unequivocally indicates that it will not enter into force until the player passes medical examination. 15. Equally, the Respondent rejects that it was in breach of the agreement and therefore claims that the Claimant has “to pay in full, or pay a contribution of no less than currency of country H 20’000 towards, the legal fees and other expenses occurred by the defendant in connection with these proceedings”. ** 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 20 July 2011. 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 20 July 2011. 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 27 January 2010, an agreement had been concluded, pertaining to the loan of the player from the Claimant to the Respondent for a loan fee of EUR 350,000, which was made subject to a successful medical examination of the player conducted by the medical team of the Respondent. 6. Likewise, the Single Judge acknowledged that, also on 27 January 2010, the Respondent and the player signed an employment contract, which was not subject to any conditions. 7. The Single Judge also noted that the medical tests which were conducted between 27 January 2010 and 29 January 2010 by the medical team of the Respondent showed that the player was not fit for practice of competitive sports because of an increased risk of suffering a life-threatening stroke, whereas the medical team of the Claimant deemed the player fit to play on 15 February 2010. In this regards, the Claimant argued that the medicals tests as conducted by the Respondent’s medical team have allegedly been erroneous, whereas the Respondent objects to these allegations, insisting that the tests have been conducted by experienced and well reputable specialists on their field of practice, emphasizing that the tests were based on highest medical standards. Therefore, the Single Judge particularly examined the documentation provided by the Respondent and its medical team regarding the extent and the quality of the medical tests as well as the final diagnosis. 8. Furthermore, the Single Judge acknowledged that, after the Respondent’s medical team informed the player’s agent and the Claimant’s medical team about the negative results of the medical test on 29 January 2013, the player tried to attend a training session with the Respondent which was denied by the latter, who at this occasion informed the player personally about the results of the medical test and that it did not deem the player fit to play. Also, the Single Judge took note that the Respondent, on 2 February 2010, paid for a flight ticket for the player to fly back to the Claimant. 9. The Single Judge further noted that, according to the Claimant, the player, after failing the medical test, was sent back to the Claimant too late, making it impossible for the latter to find a new club for the player within the transfer window. In this regard, the Single Judge noted the Respondent’s argument that the agreement did not contain an obligation for the Respondent to conduct the medical attests during a specified amount of time or until a specific date, indicating that the medical tests have been performed within three days right after the signature of the transfer agreement. 10. Moreover, the Single Judge acknowledged that the Claimant referred to art. 18 par. 4 of the Regulations which states that the validity of a contract may not be made subject it a successful medical examination, arguing that this particular clause should therefore be declared null and void as it allegedly violates art. 18 par. 4 of the Regulations. In this regard, the Single Judge also took notice of the Respondent’s argument that art. 18 par. 4 of the Regulations would only apply to employment contracts between a club and player, hence not to transfer agreements between two clubs. 11. Lastly, the Single Judge took note that the Claimant requests payment of the loan fee of EUR 350,000 plus interest of 5% p.a. on said amount, due to the alleged breach of the loan agreement by the Respondent. Subsequently, the Single Judge acknowledged that the Respondent filed a counter-claim for legal fees for not less than currency of country H 20,000. 12. In view of the foregoing and in order to establish whether the Respondent has to pay the loan fee of EUR 350,00 to the Claimant, the Singe Judge focussed its attention on the following questions: - According to art. 18 par. 4 of the Regulations, was it possible to make the loan agreement between the Claimant and the Respondent subject to a successful medical examination of the player? - In case of the validity of the abovementioned clause, have its stipulations been fulfilled, i.e. was the player in fact fit to practice competitive sport or not? - Did the Respondent have the obligation to send the player back to the Claimant until a specific deadline? 13. As to the application of art. 18 par. 4 of the Regulations, the Single Judge drew its attention to the fact that its wording clearly applies to contracts between players and clubs as already indicated by the headline of said article, “Special provisions relating to contracts between professionals and clubs.” Hence, said article does apply to transfer and loan agreements, which is why the Single Judge could not agree with the submission of the Claimant. 14. In this context, the Single Judge was eager to underline that the Regulations are based on the following concept: first, the player’s former club and the new club should find an agreement and sign the relevant contract regarding the transfer of the player. Then, the medical examination should be performed and only then, with these prerequisites established and after careful research and taking all appropriate steps, the player and his new club should sign an employment contract. Consequently, neither the spirit nor the purpose of the Regulations can prevent two clubs from making a transfer or loan agreement subject to a successful medical examination. However, every possible way of abuse needs to be prevented. In application of these considerations to the loan agreement and the disputed clause, the Single Judge formed the belief that there are no indications for a possible abuse by the Respondent, especially since the relevant medical examinations had been conducted immediately after the signature of the loan agreement and the Respondent provided the necessary medical documentation. 15. Having established the validity of the abovementioned clause, the Single Judge went on to examine the medical documentation provided by the Respondent, bearing in mind the Claimant’s doubts as to the correctness of the medical examinations of the Respondent, in connection with the Claimant’s contradictory results from its own medical tests. 16. In this context, the Single Judge observed that the Respondent has not provided any documentary proof or specific evidence for its allegations that the medical examination conducted by the Respondent’s medical team, have in fact been erroneous. 17. After carefully examining the medical documentation, especially the statements provided by the doctor who was responsible for the crucial tests of the examination, the Single Judge formed the belief that neither were there any indications fit to create doubt about the competence or the experience of the Respondent’s medical team to conduct such examination, nor was there a basis for concluding that the diagnosis made by the Respondent’s medical team had been erroneous. In this regard, the Single Judge especially held the opinion that the fact that the Claimant’s medical team came to a different diagnosis regarding the player’s health and his ability to practice competitive sport, was not sufficient to impair this conclusion. 18. In view of the foregoing, the Single Judge came to the conclusion that the condition of the loan agreement, which made the validity of the agreement subject to a successful medical examination, has been triggered when the player was deemed not fit to practice competitive sport. Therefore, the agreement has become ineffective with the consequence that the Claimant’s right to claim payment of the loan fee has ceased to exist. 19. In continuation, the Single Judge examined whether the Respondent had the obligation to send the player back to the Claimant until a specific deadline, subsequent to the player failing the medical examination. 20. In this regard, the Single Judge agreed with the Respondent and stressed that the agreement at no point stipulated a deadline or a period of time during which the medical examination had to be conducted by the Respondent. In addition to that, the Single Judge took the view that by performing the examination during a three day period after the signature of the agreement and by informing the player’s agent and the Claimant’s medical team within three days after the conclusion of said examination, the Respondent and its medical team did not take an inappropriate amount of time which could be regarded contra bona fidem. 21. 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, the Single Judge concluded that the Claimant is not entitled to receive the loan fee from the Respondent. 22. As the result of the above, the Single Judge decided to reject the Claimant’s claim. 23. In continuation, the Single Judge looked into the counter-claim of the Respondent. In this regard, the Single Judge referred to art. 18 par. 4 of the Procedural Rules which stipulate that no procedural compensation shall be awarded in proceedings of the Players’ Status Committee. Therefore, the counterclaim of the Respondent had to be rejected. 24. 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 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 (cf. art. 18 par. 1 of the Procedural Rules). 25. In respect of the above, and taking into account that the claim of the Claimant has been rejected, also bearing in mind that the counter-claim of the Respondent has been rejected as well, the Single Judge concluded that the procedural costs are to be split between the Claimant and the Respondent. 26. 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. 27. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 350,000 related to the claim of the Claimant, plus currency of country H 20,000 related to the counter-claim of the Respondent. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000 (cf. table in Annex A). 28. Considering the case at hand, taking into account that the claim of the Claimant for EUR 350,000 has been rejected and that the counter-claim of the Respondent for currency of country H 20,000 has been rejected as well, considering the complexity of the case, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 18,000. 29. 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 H 5,000 in accordance with art. 17 of the Procedural Rules. 30. In view of all of the above, the Single Judge concluded that the amount of currency of country H 15,000 has to be paid to FIFA by the Claimant and that the amount of currency of country H 3,000 has to be paid to FIFA by the Respondent, 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/Counter-Respondent is rejected. 2. The counter-claim of the Respondent/Counter-Claimant is rejected. 3. The final costs of the proceedings in the amount of currency of country H 18,000 are to be paid within 30 days as from the date of notification of the present decision as follows: 3.1. The amount of currency of country H 15,000 by the Claimant/Counter- Respondent to FIFA. Given that the Claimant/Counter-Respondent has already paid the amount of currency of country H 5,000 as advance of costs at the start of the present proceedings, the Claimant/ Counter-Respondent has to pay the additional amount of currency of country H 10,000 to the following bank account with reference to case nr. XX-XXXXX: 3.2. The amount of currency of country H 3,000 by the Respondent/Counter- Claimant to FIFA to the abovementioned bank account with reference to case nr. XX-XXXXX. ** 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