F.I.F.A. – Commissione per lo Status dei Calciatori (2013-2014) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2013-2014) – 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 January 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club D, from country C as Claimant against the club, Club F, from country S as Respondent regarding a contractual dispute between the parties and relating to the player P

F.I.F.A. - Commissione per lo Status dei Calciatori (2013-2014) – controversie tra società – ---------- F.I.F.A. - Players' Status Committee (2013-2014) – 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 January 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club D, from country C as Claimant against the club, Club F, from country S as Respondent regarding a contractual dispute between the parties and relating to the player P I. Facts of the case 1. On 16 February 2012, Club D, from country S (hereinafter: the Claimant) and the Club F, from country S (hereinafter: the Respondent), concluded an agreement (hereinafter: the agreement) for the loan of the player P (hereinafter: the player), from the Claimant to the Respondent. In accordance with the information contained in the Transfer Matching System (TMS), the player was indeed registered with the Respondent from 1 March 2012 to 11 July 2012. 2. The agreement provided for an amount of EUR 10,000 as transfer compensation, payable as follows: “(…) a) EUR 5 000 - at signing the Contract; b) EUR 5 000 - up to 15th May 2012. In case [the Respondent] fails pay the said sums in due time, a contractual penalty shall be established in the amount of 0.05% from the outstanding sum for each day of the delay until full recovery of the debt.(…)” Furthermore, the agreement stipulated the following: “(…) IV. 2. The contracting parties have agreed that all disputes arising out of this Contract will be resolved in accordance with the applicable laws and resolutions of the Football Association of the country C (…)” 3. On 16 October 2012, the Claimant lodged a claim at FIFA requesting payment of EUR 5,000, representing the second instalment of the transfer fee, “to award a contractual penalty from [the Respondent] for benefit of [the Claimant], in amount of 0,05% interest for each day of the delay in accordance with the provisions of the Contract” and “to award financial compensation from [the Respondent] for benefit of [the Claimant], in amount of 5% interest per annum for unjustified delay in payment in accordance with the art.73 of Swiss Code of Obligations.” 4. In support of its claim, the Claimant stated that after it received the first instalment in the amount of EUR 5,000 from the Respondent, the latter failed to comply with its contractual obligations. 5. In its reply, the Respondent held that FIFA was not competent to decide on the dispute, since the parties in art. 4 par. 2 of the agreement agreed that the Football Association of country C had exclusive jurisdiction. In view of the above and given that the Claimant did not lodge a claim before the Football Association of country C, the Claimant did not exhaust all domestic legal remedies as postulated in the agreement, which is why the claim should be rejected. 6. In its replica, the Claimant objected to the Respondent’s allegations, indicating that the above-mentioned art. 4 par. 2 of the agreement should not be regarded as an exclusive choice of court agreement. On the contrary, said clause allegedly only indicates the applicable law and not the competent dispute resolution body. 7. Furthermore, the Claimant indicates that the Respondent is affiliated to the country S Football Association whereas “the regulations of organized football and legislative acts that are valid within the country S do not refer to country S clubs”. Therefore, the Football Association of country C would not be able to impose sanctions on the country S club which is why the Football Association of country C is allegedly not an appropriate body for the consideration of this case. Hence, FIFA should declare itself competent to adjudicate the present dispute. 8. In its final position, the Respondent reiterated its previous arguments. 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 were applicable to the matter at hand. In this respect, he referred to art. 21 par. 1 and 2 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2008 and 2012; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 16 October 2012, thus after 1 July 2008. 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 and 2012edition of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged in front of FIFA on 16 October 2012. In view of the foregoing, 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 case at hand as to the substance. 3. However, the Single Judge acknowledged that the Respondent contested the competence of FIFA on the basis of art. 4 par. 2 of the agreement. The Single Judge equally noted that the Claimant had in turn rejected such position and insisted on the fact that FIFA had jurisdiction to deal with the present matter as said clause would only indicate the applicable law and would not constitute a jurisdiction clause. 4. In view of the above, the Single Judge went on to analyse whether the agreement at the basis of the dispute actually contained a jurisdiction clause. Consequently, the Single Judge reverted to the content of art. 4 par. 2 of the agreement and recalled that said article stipulates that all disputes arising out of the agreement should be resolved in accordance with the applicable laws and resolutions of the Football Association of country C. Given the wording of said provision, the Single Judge came to the conclusion that the relevant clause of the agreement only stipulates the applicable law in case a dispute arises between the parties pertaining to the agreement. However, the Single Judge noted that the agreement in art. 4 par. 2 does not provide a stipulation regarding the decision making body which should be competent to deal with such disputes. Consequently, the Single Judge concluded that the Respondent’s objection to the competence of FIFA to deal with the present matter had to be rejected and that he was therefore competent, on the basis of art. 3 par. 1 and par. 2 of the Procedural Rules in connection with art. 23 par. 1 and par. 3 as well as art. 22 lit. f) of the Regulations, to deal with the present matter since it concerned a dispute between two clubs affiliated to different associations. 5. The competence of the Single Judge 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. 6. First of all, the Single Judge noted that the Respondent only provided its position pertaining to the competence of FIFA but did not provide any position as to the substance of the matter. As a consequence, the Single Judge concluded that the Respondent had renounced to exercise its right of defence and had thus accepted the allegations of the Claimant. In this context, the Single Judge referred to art. 9 par. 3 of the Procedural Rules which provides, inter alia, that “If no statement or reply is received before the time limit expires, a decision shall be taken upon the basis of the documents already on file” and held that the decision in the present matter would be based on the documents provided by the Claimant. 7. Furthermore, the Single Judge acknowledged that on 16 February 2012, the parties concluded an agreement for the loan of the player from the Claimant to the Respondent which, inter alia, in its art. 2 par. 1 provided for a transfer compensation in the amount of EUR 10,000, payable in two equal instalments of EUR 5,000, of which the first instalment was paid by the Respondent to the Claimant. 8. In continuation, the Single Judge noted that the second instalment of EUR 5,000, which fell due on 15 May 2012, was never paid by the Respondent to the Claimant. Consequently, the Single Judge decided that, based on art. 2 par. 1 lit. b) of the agreement, the Respondent has to pay to the Claimant the amount of EUR 5,000. 9. In addition to that, the Single Judge acknowledged that the agreement in its art. 2 par. 1 also stipulated that, in case the Respondent fails to pay the relevant amounts to the Claimant, a contractual penalty in the amount of 0.05% on the outstanding amount should be payable for every calendar day of delay in payment. Moreover, the Single Judge noted that the Claimant, next to the abovementioned amount of 0.05% per calendar day based on the penalty clause, is also claiming default interest at a rate of 5% p.a. on the outstanding amount based on art. 73 of the Swiss Code of Obligations. 10. Subsequently, the Single Judge referred to the content of the penalty clause and, after analysing the relevant provision contained in the transfer agreement, noted that a penalty clause for late payment of 0.05% per calendar day adds up to an amount of 18.25% p.a. In this context, the Single Judge recalled the well-established jurisprudence of the Players’ Status Committee according to which a penalty clause exceeding the amount of 18% p.a. has to be considered abusive. Moreover, the Single Judge determined that the provision in question has to be considered as completely invalid and consequently came to the conclusion that the Claimant’s claim for interest in the amount of 0.05% per calendar day has to be rejected. 11. In view of the foregoing, given that the penalty clause contained in the transfer agreement concluded between the parties has to be disregarded, the Single Judge was in a position to consider the Claimant’s claim for default interest. In this context, and in accordance with the longstanding practice of the Players’ Status Committee, the Respondent has to pay 5% p.a. default interest on the respective outstanding installments as of the due date of the relevant payment, i.e. as of 16 May 2012. 12. In conclusion, the Single Judge decided to partially accept the claim of the Claimant and determined that the Respondent is liable to pay to the Claimant the total amount of EUR 5,000 plus default interest of 5% p.a. on said amount as of 16 May 2012 until the date of effective payment. 13. 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). 14. In respect of the above, and taking into account that the claim of the Claimant has been partially accepted, the Single Judge concluded that both the Claimant as well as the Respondent have to bear a part of the costs of the current proceedings before FIFA. 15. 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 5,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 5,000. 16. In conclusion, and considering the particularities of the case and its factual difficulties, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 3,000. Moreover, in line with his aforementioned considerations and taking into account the degree of success, the Single Judge of the Players’ Status Committee decided that the amount of currency of country H 1,000 has to be paid by the Claimant and the amount of currency of country H 2,000 by the Respondent 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 D, is admissible. 2. The claim of the Claimant, Club D, is partially accepted. 3. The Respondent, Club F, has to pay the amount of EUR 5,000 to the Claimant, Club D, within 30 days as from the date of notification of this decision, plus interest at a rate of 5% p.a. as of 16 May 2012 until the date of effective payment. 4. If the aforementioned sum plus interest is not paid within the aforementioned deadline, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee, for consideration and a formal decision. 5. Any further claims lodged by the Claimant, Club D, are rejected. 6. The final amount of costs of the proceedings in the amount of currency of country H 3,000 is to be paid, within 30 days as from the notification of the present decision, as follows: 6.1 The amount of currency of country H 1,000 by the Claimant, Club D, to FIFA to the following bank account with reference to case nr.: 6.2 The amount of currency of country H 2,000 by the Respondent, Club F, to FIFA to the abovementioned bank account with reference to case nr. 7. The Claimant, Club D, is directed to inform the Respondent, Club F, immediately and directly of the account number to which the remittance under point 3 is 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 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