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 Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 29 July 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club B, from country P as Claimant against the club, Club O, from country F as Respondent regarding a contractual dispute between the parties relating to the player A

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 Decision of the Single Judge of the Players’ Status Committee passed in Zurich, Switzerland, on 29 July 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club B, from country P as Claimant against the club, Club O, from country F as Respondent regarding a contractual dispute between the parties relating to the player A I. Facts of the case 1. On 18 July 2009, Club B, from country P (hereinafter: the Claimant) and Club O, from country F (hereinafter: the Respondent), concluded a transfer agreement (hereinafter: the agreement) for the transfer of the player A (hereinafter: the player), from the Claimant to the Respondent. 2. According to the agreement, the transfer amount for the transfer of the player from Club B to Club O was EUR 15,000,000, “payable in three instalments as follows: a) € 5.000.000 (Five Million Euros) on the 25th July 2009 b) € 5.000.000 (Five Million Euros) on the 31st July 2010 c) € 5.000.000 (Five Million Euros) on the 31st July 2011 3. The transfer agreement provided in clause 2 the following: “ 2)(…) §1: Club O obliges to deliver to Club B until 31 August 2009 two bank guarantees on first demand in order to assure the payment of the second and third instalments (…). The Bank guarantees shall be approved by the country P Bank and Club B agrees to assume the responsibility of all costs derived from the anticipated discount of such bank guarantees.” 4. On 23 November 2010, the Claimant sent an invoice to the Respondent, indicating “Value concerning Player A, Professional Football Player Registration Transfer Agreement: Clause 2, 1st paragraph (concerned period 30/07/2009 to 01/08/2010)”, thereby requesting from the latter an amount of EUR 407,700.05, payable until 23 December 2010. 5. In addition to the abovementioned invoice, the Claimant enclosed the following invoices it received from the country P Bank Banco Espirito Santo (BES) (hereinafter: the bank): Date of invoice Invoiced period Credit Amount 31 October 2009 30 July 2009 until 30 October 2009 EUR 10,000,000 28 February 2010 30 October 2009 until 1 February 2010 EUR 10,000,000 31 May 2010 1 February 2010 until 1 May 2010 EUR 10,000,000 31 August 2010 1 May 2010 until 1 August 2010 EUR 10,000,000 6. Between 10 February 2011 and 27 September 2011, the parties exchanged numerous correspondences in which the Claimant requested payment of the invoice it sent to the Respondent on 23 October 2010, while the Respondent denied being responsible for the amounts stipulated on said invoice as this was allegedly never agreed between the parties. In this context, in its letter dated 10 February 2011, the Respondent indicated that the parties verbally agreed that the fees for the bank guarantee should already be included in the transfer. 7. On 19 January 2012, the Claimant sent another invoice to the Respondent, indicating the following: “Value concerning Player A, Professional Football Player Registration Transfer Agreement: Clause 2, 1st paragraph (concerned period 01/08/2010 to 18/08)”, thereby requesting from the latter the amount of EUR 334,948.73. 8. In addition to the above-mentioned invoice, the Claimant enclosed the following invoices it received from the bank: Date of invoice Invoiced period Credit Amount 30 November 2010 1 August 2010 until 1 November 2010 EUR 5,000,000 28 February 2011 1 November 2010 until 1 February 2011 EUR 5,000,000 31 May 2011 1 February 2011 until 1 May 2011 EUR 5,000,000 31 August 2011 1 May 2011 until 16 August 2011 EUR 5,000,000 9. On 29 June 2012, the Claimant lodged a claim at FIFA, requesting from the Respondent to be reimbursed for the costs of the above-mentioned bank guarantees for the 2nd and 3rd instalment of the captioned transfer in accordance with clause 2 par. 1 of the agreement, and after amending its claim, requesting payment of an amount of EUR 407,700.05 plus 5% interest p.a. “until the effective payment is made.” 10. In its reply, the Respondent held that with its claim the Claimant does not try to obtain payment for the fees of the bank guarantee (“bank discount / escompte”) as stipulated in the agreement, but instead requests reimbursement of interests related to a bank loan (“loan interest / intérêts de prêt”) from the bank. In this context, the Respondent stated that it is not obliged to pay the interest on any bank loans of the Claimant, as they were not in connection with the bank guarantee regarding the transfer of the player. 11. Furthermore, the Respondent indicated that the invoices sent by the Claimant to the Respondent on 23 November 2010 for an amount of EUR 407,700.05 related to the transfer of the player (cf. point I.4), did not make any reference to the bank guarantees. In this regard, the Respondent stresses that “les factures du Club B ou les pieces censées les justifier, ells ne sauraient en aucune façon se rapporter à des guaranties bancaires (…) alors meme que les guaranties bancaires n’ont été émises que postérieurement (…)”, (NB: in English) “neither the invoices issued by Club B nor the documents justifying them do correspond at all with the respective bank guarantees (…), which have only been issued retroactively (…). 12. Consequently, the Respondent implies that the Claimant is trying to be reimbursed from the Respondent for a completely different financial transaction which is not related to the transfer of the player, stressing that the financial terms used on the invoices are allegedly normally used in loan- respectively credit-agreements and not in connection with bank guarantees. 13. In addition to that, the Respondent refers to the letter dated 10 February 2011, sent to the president of the Claimant by the Respondent’s president, in which the latter stated that the parties allegedly verbally agreed that the costs on the second and third instalments for the transfer shall already be included in the transfer amount. 14. Finally, the Respondent stated that the claim from the Claimant does not meet the demands of art. 9 par. 1 lit. d) of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), as the claim was not substantiated and did not provide any arguments which would have allowed the Respondent to file its defence. 15. In its replica, the Claimant stated that in clause 2 par. 1 of the agreement the Respondent obliged itself to “assume the responsibility of all costs derived from the anticipated discount of such Bank guarantees”, which is why the dates of when the bank guarantees were issued and the dates of the invoices don’t correspond. 16. Therefore, and given the clear wording of the agreements, the Claimant held that the Respondent was trying to “re-write the contracts” by way of an incorrect legal interpretation, “ignoring the clear and complete expression of the parties’ intentions”, including “provisions that the parties neither made nor intended”. In this context, the Claimant stressed that even if “the parties’ conduct prior to the contract is not in accordance with the letter of the contract, (…) it must be considered that the letter of the contract prevails (…) and that the parties’ conduct has been replaced by the parties’ intentions as expressed in the contract.” 17. In this regard, the Claimant stated that the legal and financial terms used in the agreement and on the respective invoices correspond with the legal definition and basic structure of a bank guarantee (cf. point I.10), where “the Bank makes advances on a third party debts to clients and deducts the corresponding interest via the assignment of the debt, which is effected via the corresponding contract (discount agreement). This discount, as with the discounts in which the parties crystal clearly agreed in the contracts in this case, consists of the interest, which is proportionate to the period of time that effluxes between the date of the advance and the date the instrument becomes due”. 18. In addition to that, the Claimant objects to the alleged verbal agreement between the clubs’ presidents, denying its evidential value of the statement made by the president of the Respondent in his letter dated 10 February 2011 (cf. point I.6). 19. In its final position, the Respondent maintained its previous position, emphasizing that the fees and the interest of the alleged loan of the Claimant from its bank are in no relation whatsoever with the anticipated discount of the bank guarantee. 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). The present matter was submitted to FIFA on 29 June 2012. 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 2012 and 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 29 June 2012. 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. 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 18 July 2009, a transfer 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 transfer agreement stipulated a transfer amount of EUR 15,000,000 payable in three equal installments of EUR 5,000,000 each, payable on 25 July 2009, 31 July 2010 and 31 July 2011. 7. Equally, the Single Judge took note that the agreement obliged the Respondent to deliver two first demand bank guarantees to the Claimant in order to assure the payment of the second and the third instalment of the transfer amount. Furthermore, the agreement stipulated the following: “Club O obliges to deliver to Club B until 31st August 2009 two Bank guarantees on first demand in order to assure the payment of the second and third instalments (as referred in 2b) and c) above. The Bank guarantees shall be approved by the country P Bank Banco Espirito Santo (BES) and Club O agrees to assume the responsibility of all costs derived from the anticipated discount of such bank guarantees.” 8. The Single Judge also noted that the Claimant, on 23 November 2010, sent an invoice to the Respondent in relation with the transfer of the player, for an amount of EUR 407,700.05 for the period of 30 July 2009 until 1 August 2010, payable until 23 December 2010, indicating “Value concerning player A, namely Professional Football Player Registration Transfer Agreement: Clause 2, 1st paragraph (concerned period 30/07/2009 to 01/08/2010)”. In this regard, the Single Judge also further acknowledged that the Claimant enclosed invoices it received from the bank which, per se, do not make any reference to a specific transfer of the player, but which indicate on which amount and for which period the calculation of the invoiced interests have been based. 9. Furthermore, the Single Judge acknowledged that on 19 January 2012, the Claimant sent another invoice to the Respondent, requesting from the latter the amount of EUR 334,984.73 for the period of 1 August 2010 until 18 August 2011, again enclosing invoices the Claimant received from its bank, indicating “Value concerning player A, Professional Football Player Registratio: Clause 2, 1st paragraph (concerned period 01/08/2010 to 18/08)”. 10. In addition to that, the Single Judge acknowledged that the Claimant, on 29 June 2012, lodged a claim before FIFA, requesting to be reimbursed from the Respondent for the costs of the above-mentioned bank guarantees for the 2nd and 3rd instalment of the captioned transfer in accordance with clause 2 par. 1 of the agreement, and after amending its claim, requesting payment of an amount of EUR 407,700.05 plus 5% interest p.a. “until the effective payment is made.” 11. In this context, the Single Judge took note that, on the other hand, the Respondent rejected the claim lodged against it, based on the argumentation that the Claimant was allegedly not trying to obtain the fees of the bank guarantee as stipulated in clause 2 par. 1 of the transfer agreement, but instead requests reimbursement of interests related to a different bank loan which was not in relation to the transfer of the player. In support of its objection to the claim, the Respondent indicated that the legal and financial terms used on the invoice sent by the Claimant would not correspond with the terms which are usually used in the context of bank guarantees. Likewise, the Single Judge acknowledged the Respondent’s argument that the invoices dated 23 November 2010 for an amount of EUR 407,700.05 as presented by the Claimant to the Respondent, would not make any reference to the bank guarantees. 12. In view of the parties’ divergent arguments, the Single Judge underlined that the underlying issues of the present dispute was to decide whether the Claimant was entitled to receive any monies in accordance with the transfer agreement in particular pertaining to the bank guarantees which had been issued in connection with the transfer of the player. 13. In addition, the Single Judge firstly recalled the general legal principle of art. 12 par. 3 of the Procedural Rules which states that any party claiming a right on the basis of an alleged fact shall carry the burden of proof. 14. In this respect, the Single Judge started analysing all documents on file. In particular, he recalled that according to clause 2 par. 1 of the agreement, “(…) Club O agrees to assume the responsibility of all costs [emphasis added] from the anticipated discount of such bank guarantees.” 15. In this respect, the Single Judge noted that the Respondent referred to a letter which was sent by its president to the president of the Claimant on 10 February 2011 and which stipulates that “tu te souviendras que nous avons meme évoqué, lors de notre rencontre, que la garantie à première demande venait se substituer à des frais financiers et que nous avions opté pour un prix de transfert correspondant à ta demande, mais avec un délai de paiement plutôt que d’obtenir un prix minoré payable cash”, (NB: in English) “you will remember that we even raised the point at the occasion of our meeting, that the guarantee at first demand should be compensated by the financial fees and we even decided on a transfer fee in accordance with your demands, but with a deadline for the payment instead of obtaining a lower price in cash”. In other words, the Respondent argues that the parties had verbally agreed that the interests on the second and third instalments for the transfer should already be included in the transfer amount. 16. Furthermore, the Single Judge observed that, apart from the above-mentioned letter, the Respondent did not provide any evidence in support of its assertion that the parties had verbally agreed that the costs for the bank guarantees should already be included in the transfer amount (cf. art. 12 par. 3 of the Procedural Rules). 17. Consequently and in accordance with art. 12 par. 3 of the Procedural Rules, the Single Judge held that the letter dated 10 February 2011 had no evidential value and could therefore not be regarded as sufficient proof that such verbal agreement had actually been concluded, and that the Claimant would have agreed to the above-mentioned circumstances. 18. Furthermore, taking into consideration all the surrounding circumstances of this specific matter as well as the documentation presented during the proceedings, the Single Judge took into account the invoices which have been sent by the Claimant to the Respondent. In particular, the Single Judge analysed the invoices provided by the Claimant to the Respondent dated 23 November 2010 and 19 January 2012 as well as the correspondences exchanged between the parties in connection with such invoices and reminders dated 10 February 2011, 23 February 2011, 25 February 2011, 3 March 2011, 19 September 2011, 27 September 2011 and 19 January 2012. After a thorough analysis of said documentation, the Single Judge concluded that the amounts stipulated in said invoices could be linked to the above-mentioned bank guarantees. 19. In this respect, the Single Judge recalled the Respondent’s argument that the legal and financial terms used on the invoice sent by the Claimant would not correspond with the terms which are usually used in the context of bank guarantees, In this respect, the Single Judge noted that the Respondent did not make reference to any specific legal or financial terms of the invoices of the bank nor did it provide any documentary evidence in this regard (cf. art. 12 par. 3 of the Procedural Rules). Equally, the Single Judge held that the Respondent never objected to the amounts stipulated on the respective invoices per se, since it only challenged its general obligation to pay any amounts to the Claimant. 20. In view of all of the above, the Single Judge concluded that the transfer agreement signed between the Claimant and the Respondent obligated the latter to bear all the expenses in relation to such bank guarantee as claimed by the Claimant, in particular in accordance with clause 2 of said agreement. 21. As a result of all of the above, the Single Judge decided to accept the Claimant’s claim and to award him the amount of EUR 407,700 plus 5% interest p.a. on said amount as of 29 June 2012 until the date of effective payment. 22. 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). 23. 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. 24. 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. 25. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 407,700 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 H 25,000 (cf. table in Annex A). 26. 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 H 15,000. 27. 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 by the Respondent to FIFA 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 B, is accepted. 2. The Respondent, Club O, has to pay to the Claimant, Club B, within 30 days as from the date of notification of this decision, the amount of EUR 407,700, plus default interest at a rate of 5% p.a. on said amount as of 29 June 2012 until the date of effective payment. 3. 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. 4. The final costs of the proceedings in the amount of currency of country H 15,000 are to be paid by the Respondent, Club O, within 30 days as from the notification of the present decision to FIFA to the following bank account with reference to case nr. : 5. The Claimant, Club B, is directed to inform the Respondent, Club O, immediately and directly of the account number to which the remittance under point 2 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 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 Markus Kattner Deputy Secretary General Encl. CAS directives