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 23 April 2013, 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 G, from country I as “Respondent” regarding a contractual dispute arisen between the parties and relating to the player R

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 23 April 2013, 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 G, from country I as “Respondent” regarding a contractual dispute arisen between the parties and relating to the player R I. Facts of the case 1. On 30 January 2012, Club T, from country B (hereinafter: the Claimant), and the Club G, from country I (hereinafter: the Respondent) concluded a loan agreement (hereinafter: the agreement) regarding the loan of the player R (hereinafter: the player) to the Respondent between 31 January and 30 June 2012, which provided for the Claimant to receive, as loan fee (hereinafter: the loan fee), the sum of EUR 800,000 in three instalments as follows: EUR 300,000 within 30 days “after the release of ITC in favour of Club G” (hereinafter: the first instalment); EUR 250,000 on or before 15 July 2012 (hereinafter: the second instalment) and EUR 250,000 (hereinafter: the third instalment) on or before 15 December 2012. In this respect, the agreement clearly stated that the aforementioned sum of EUR 800,000 was payable “for the (..) temporary loan of the rights relating to the sports performances from 31 January 2012 until 30 June 2012 (..).” 2. In addition, the agreement provided for the Respondent to also keep the player on loan during the 2012/2013 season, i.e. from 1 July 2012 until 30 June 2013, by notifying the Claimant accordingly until 30 June 2012. Furthermore, the agreement included a “buy option” clause for the definitive transfer of the player to the Respondent for the amount of EUR 3,500,000 to be exercised “on or before 30 June 2013”. 3. Finally, the agreement specified that, in case of any delay in the payment of the loan fee “or in case of payment only partial (..), a penalty fee of 5% (..) of the amount still pending will be due, plus a 5% (..) interest per annum until the date of actual and complete payment” (hereinafter: the penalty clause). 4. On 14 August 2012, the Claimant lodged a claim with FIFA against the Respondent requesting from the latter the payment of EUR 525,000, plus 5% interest as of 12 July 2012, and the payment of 1% interest per month over the amount of EUR 500,000 as of 12 July 2012 “as compensation for the lack of timely availability of money”. In addition, the Claimant requested the payment of unspecified damages to be determined “by the court at its discretion (..) in view of the specificity of the sport”, plus 5 % interest as of 12 July 2012 and the reimbursement of the legal expenses “to be determined ex aequo et bono by the PSC, added to any and all FIFA administrative and procedural costs eventually incurred.” 5. In this respect, the Claimant accused the Respondent of having breached the agreement by failing to pay EUR 500,000 out of EUR 800,000 that was due as loan fee. Furthermore, the Claimant blamed the Respondent for not having paid the first instalment on time. 6. As to the facts of the case, the Claimant explained having so far only received from the Respondent the following payments: EUR 150,000 on 21 March 2012; EUR 150,000 on 29 March 2012 and EUR 15,916.67 on 30 March 2012, “corresponding to the penalty fee of 5% (..) plus a 5% (..) for the late payment of the first instalment (..)” and provided FIFA with a copy of the payment receipts in question. 7. In continuation, the Claimant alleged that the Respondent had refused to pay the second and third instalments arguing that it had not exercised the option to extend the loan of the player for the 2012/2013 season and that, consequently, those two last payments were not due. As evidence, the Claimant provided a copy of the Respondent’s relevant correspondence dated 12 July 2012. In this respect, the Claimant disagreed completely with the Respondent’s interpretation of the agreement and stressed that because the player had been duly loaned to the latter between 30 January and 30 June 2012, the Respondent had to pay the entire loan fee agreed. Furthermore, the Claimant pointed out that the payment of the loan fee was in no way linked to the option of extending the loan of the player during the 2012/2013 season. 8. Likewise and referring to the penalty clause, the Claimant emphasized that the Respondent had to additionally pay a penalty fee in the amount of EUR 25,000, corresponding to 5% of EUR 500,000 (i.e. the second instalment in the amount of EUR 250,000, plus the third instalment in the amount of EUR 250,000), plus 5% interest “over € 525,000” as of “the date of the breach of contract, meaning 12 July 2012 [i.e. the date on which the Respondent refused to pay the outstanding instalments, cf. the Respondent’s correspondence dated 12 July 2012 mentioned above] (..) until the date of actual and complete payment”. 9. Besides the above, the Claimant, referred to art. 161 par. 2 of the Swiss Code of Obligations and considered that the Respondent should also pay 1% interest per month over the outstanding amount of EUR 500,000 as compensation for damages. In this regard, the Claimant complained that while it had a “reduced capacity of investment and operation in the football marked” the Respondent was “enjoying an undue amount of money” and stressed that, for any debt that it could not pay because of “the loss of the budgeted amount deriving from the instalments due by Club G” it had “to face the legal interest applied in country B, which corresponds to 1% (..) per month”. 10. Finally, the Claimant argued that, considering the relevance that an amount of EUR 500,000 had for a club like it was, the Respondent should additionally pay a “further amount as damage related to the specificity of sport, to be estimated by the court at its best discretion”. 11. In its response dated 12 November 2012, the Respondent rejected the Claimant’s claim arguing that it had fulfilled all its obligations pertaining to the agreement by paying to the latter the first installment as well as the corresponding penalty fee for late payment. 12. In this respect, the Respondent explained that because it had decided not to extend the loan of the player to the 2012/2013 season, no further payments were due to the Claimant. 13. According to the Respondent, the parties had agreed on the loan fee (i.e. the entire amount of EUR 800,000) only being payable in case the Respondent kept the player on loan also during the 2012/213 season. Likewise, the Respondent alleged that for the loan period January - June 2012 only the first instalment was payable. 14. In continuation, the Respondent maintained that the sum of EUR 800,000 had been entered into TMS as loan fee because, in accordance with the regulations of the country I Football Federation, “players on loan may not be registered for a term that exceeds a football season at a time” and stressed that if “€ 300,000 and not €800,000 had been reported in the FIFA TMS as the value of the transaction and in June Club G had exercised its option to extend the loan, the ITC would have been released for an 18-month term without the real compensation for such period being reported in the TMS”. In Club G’s opinion, its aforementioned allegations were also ”supported by the fact that the Transfer Agreement sets forth a schedule which comprises both the 2011/2012 and the 2012/2013 season”. In addition, the Respondent pointed out that the agreement did not contain any provision as to the amount due for the loan of the player during the following season. Besides, the Respondent mentioned that, during the 2012/2013 season, the player had been loaned by the Claimant to Club B, from country I for an amount similar to the one “agreed between the Respondent and the Claimant as compensation for the temporary transfer during the same period, i.e. € 500,000 (..)” a fact which, in its opinion, proved “Club T’s claim as disproportionate” and demonstrated that the “true terms of the Tranfer Agreement” were “aligned” with its position. 15. Finally, the Respondent stressed that the agreement had to be interpreted in a broader way “in line with the parties’ real intentions”. In addition, the Respondent stressed that the “Claimant’s application for penalties, additional interests and compensation for damages escapes the content of the Transfer Agreement and should therefore be dismissed for lack of grounds.” 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 and 2012). Consequently, and since the present matter was submitted to FIFA on 14 August 2012, the Single Judge concluded that 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 analysed which edition of the Regulations on the Status and Transfer of Players is 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 2009 and 2010 and 2012 editions of the Regulations on the Status and Transfer of Players, and, on the other hand, to the fact that the present claim was lodged with FIFA on 14 August 2012. In view of this, the Single Judge concluded that the 2010 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 3. Subsequently, the Single Judge confirmed that, on the basis of art. 3 par. 1 and 2 of the Procedural Rules in connection with art. 23 par. 1 and 3 as well as art. 22 lit. f) of 2012 edition of the Regulations on the Status and Transfer of Players he is competent to deal with the matter at stake, which concerns a dispute between two football 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 facts of the case and the arguments of the parties as well as the documents contained in the file. In particular, the Single Judge started his analysis of the case by noting that the Claimant and the Respondent had signed a loan agreement (hereinafter: the agreement) concerning the loan of the player to the Respondent from 31 January until 30 June 2012 that provided for the Claimant to receive from the Respondent, as loan fee, the total amount of EUR 800,000 in three instalments as follows: EUR 300,000 within 30 days “after the release of ITC in favour of Club G” (hereinafter: the first instalment); EUR 250,000 on or before 15 July 2012 (hereinafter: the second instalment) and EUR 250,000 (hereinafter: the third instalment) on or before 15 December 2012. Furthermore, the Single Judge remarked that the agreement also included a clause related to the loan of the player to the Respondent for a further season as well as one provision concerning his definitive transfer to the latter. In addition, the Single Judge observed that in accordance with a penalty clause comprised in the agreement (hereinafter: the penalty clause), in case of any delay in the payment of the loan fee “or in case of payment only partial (..), a penalty fee of 5% (..) of the amount still pending will be due, plus a 5% (..) interest per annum until the date of actual and complete payment”. In continuation, the Single Judge noted that, in its claim to FIFA, the Claimant had inter alia requested from the Respondent the payment of the second and third installments due as per the agreement, arguing that the latter had refused to pay them. 5. Equally, the Single Judge observed that, for its part, the Respondent had acknowledged having concluded the agreement with the Claimant and had admitted not having paid the second and the third installment. In this context, the Single Judge further remarked that, in the Respondent’s opinion, considering that it had renounced to extend the loan of the player for another season, the claimed amounts were not payable to the Claimant. Therefore, the Respondent deemed having fulfilled all its obligations pertaining to the agreement and considered that the claim of the Claimant should be rejected. 6. With the aforementioned considerations in mind, the Single Judge first of all recalled that the agreement explicitly provided for the Respondent to pay to the Claimant the total amount of EUR 800,000 in consideration of the loan of the player for the period between 31 January and 30 June 2012. Furthermore, the Single Judge pointed out that it was undisputed that the player had been on loan with the Respondent between 31 January and 30 June 2012. Finally, the Single Judge stressed that the loan of the player for a further season was clearly regulated by a separate paragraph in the agreement. 7. In light of the above, taking into account the legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, considering that the Respondent had acknowledged having concluded the agreement with the Claimant and bearing in mind that the latter had never contested having had the player on loan between 31 January and 30 June 2012, as well as recalling the unmistakable wording of the agreement with regard to such loan, the Single Judge decided that the Respondent, in order to fulfil its obligations pertaining to the agreement, had to pay to the Claimant the outstanding amount of EUR 500,000, corresponding to the first and second instalment. 8. Having established the above-mentioned, the Single Judge further noticed that in its claim to FIFA, the Claimant had also requested from the Respondent the payment of the additional sum of EUR 25,000 as per the penalty clause, corresponding to 5% of the outstanding sum of EUR 500,000. 9. In this context, the Single Judge was eager to emphasize that the agreement did provide for the Respondent to pay, in case of delay in the payment of the loan fee, a penalty fee corresponding to 5% of the corresponding outstanding amount. 10. Hence, taking into account once again the legal principle of pacta sunt servanda as well as bearing in mind that the Respondent had failed to pay to the Claimant the sum of EUR 500,000 out of the amount of EUR 800,000 that was due as loan fee, the Single Judge resolved that the latter had to pay to the Claimant the additional amount of EUR 25,000, corresponding to 5% of EUR 500,000, in accordance with the penalty clause. 11. In continuation, the Single Judge turned his attention to the Claimant’s request for a further 5% interest to be applied on the claimed amount of EUR 525,000 in accordance once again with the penalty clause. 12. In this respect, the Single Judge recalled that the same penalty clause already provided for the Respondent to pay 5% interest on any outstanding amount. Consequently, the Single Judge considered that adding a further 5% on the relevant outstanding sum had to be regarded as excessive. As a result, the Single Judge held that this second part of the penalty clause included in the agreement had to be disregarded because disproportionate. 13. In view of the above, the Single Judge decided that the claim of the Claimant related to the payment of 5% interest on the amount of EUR 525,000 had to be rejected. 14. Having ruled on the aforementioned, the Single Judge concentrated on the third part of the Claimant’s claim, i.e. its request for the payment of 1% interest per day over the outstanding amount of EUR 500,000, allegedly corresponding to the “legal interest applied in country B” on its debts. As to that, the Single Judge remarked that no evidence had been provided by the Claimant in support of the allegation that it had been paying 1% interest on the amount of EUR 500,000 as a result of the delayed payment of the Respondent, nor on the fact that 1% interest was actually applied in country B on debts. Consequently, and bearing in mind the content of art. 12 par. 3 of the Procedural Rules which stipulates that the burden of proof has to be carried by the party claiming a right on the basis of an alleged fact, the Single Judge concluded that this part of the Claimant’s claim could not be granted for lack of proof. 15. Finally and with regard to the Claimant’s request related to the payment of an unspecified amount “as damage related to the specificity of the sport”, the Single Judge was eager to emphasise that no evidence of such damage had been brought to FIFA by the Claimant. As a result and in accordance with art. 12 par. 3 of the Procedural Rules, the Single Judge came to the conclusion that also this last part of the Claimant’s claim had to be rejected for lack of proof. 16. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and the Respondent has to pay to the Claimant the amount of the amount of EUR 525,000. 17. 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 the proceedings before the Players’ Status Committee, including the Single Judge, costs in the maximum amount of currency of country H 25,000 are levied. 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). 18. In this respect, the Single Judge reiterated that the claim of the Claimant is only partially accepted and that the Respondent is the party at fault. Therefore, the Single Judge concluded that in view of the circumstances of the present case it would be fair and reasonable that the costs of the current proceedings be proportionally borne by the Claimant and the Respondent on the basis of their respective degree of success in the present matter. 19. 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. Consequently and taking into account that the total amount at dispute in the present matter is above currency of country H 200,0001, 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 considering that the case at hand was adjudicated by the Single Judge and not by the Players’ Status Committee in corpore and that the present case did not show particular factual difficulties or specific legal complexities, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 15,000. 21. Consequently, the Respondent has to pay the amount of USD 10,000 and the Claimant the amount of currency of country H 5,000 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 partially accepted. 2. The Respondent, Club G, has to pay to the Claimant, Club T, the amount of EUR 525,000, within 30 days as from the date of notification of this decision. 3. Any further claims lodged by the Claimant, Club T, are rejected. 4. If the aforementioned sum is not paid within the aforementioned deadline, an interest rate of 5% per year will apply as of the expiry of the fixed time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 5. The final costs of the proceedings in the amount of currency of country H 15,000 are to be paid by both parties to FIFA, within 30 days as from the date of notification of the present decision as follows: 5.1. The amount of currency of country H 10,000 has to be paid by the Respondent, Club G, to the following bank account with reference to case nr. XX-XXXXX: 5.2. The amount of currency of country H 5,000 has to be paid by the Claimant, Club T. Considering that the Claimant, Club T, already paid the amount of currency of country H 5,000 as advance of costs, the latter is exempted from paying the abovementioned costs of the proceedings. 6. The Claimant, Club T, is directed to inform the Respondent, Club G, immediately and directly of the account number to which the remittance under point 2 above is to be made and to notify the Players’ Status Committee of every payment received. ** 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