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 2 October 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club B, from country S as Claimant against the club Club X, from country I 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 of the Players’ Status Committee passed in Zurich, Switzerland, on 2 October 2013, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club Club B, from country S as Claimant against the club Club X, from country I as Respondent regarding a contractual dispute between the parties relating to the player A I. Facts of the case 1. On 23 May 2008, the country S club, club B (hereinafter: the Claimant), the country I club, club X (hereinafter: the Respondent), and the player, A (hereinafter: the player), concluded a transfer agreement for the definitive transfer of the player from the Claimant to the Respondent. 2. The aforementioned transfer agreement stipulated, inter alia, the following: “3.2 On July 15 2008, club X shall pay to club B the sum of € 300.000,00 (three hundred thousand Euros) (the “First Instalment”). 3.3 On July 15 2009, club X shall pay to club B the sum of € 300.000,00 (three hundred thousand Euros) (the “Second Instalment”). 3.4 In the event the Player has played in the club X first squad at least 3 official matches for at least 30 minutes each, club X shall pay to club B the additional compensation of € 200.000,00 (two hundred thousand euros) (the “First Additional Compensation). 3.5 In the event the Player has played in the club X first squad at least 10 official matches for at least 30 minutes each, club X shall pay to club B the additional compensation of € 200.000,00 (two hundred thousand euros) (the “Second Additional Compensation). 3.6 In the event the Player has played in the club X first squad at least 20 official matches for at least 30 minutes each, club X shall pay to club B the additional compensation of € 200.000,00 (two hundred thousand euros) (the “Third Additional Compensation). 3.7 In the event the Player has played in the club X first squad at least 30 official matches for at least 30 minutes each, club X shall pay to club B the additional compensation of € 400.000,00 (four hundred thousand euros) (the “Fourth Additional Compensation). 3.8 In the event the Player has played in the club X first squad at least 40 official matches for at least 30 minutes each, club X shall pay to club B the additional compensation of € 400.000,00 (four hundred thousand euros) (the “Fifth Additional Compensation). (from the First Additional Compensation to the Fifth Additional Compensation, together also the “Additional Compensations”) 3.9 Any and all Additional Compensations shall be paid at the end of the seasons in which the Player had reached the foreseen number of appearances, however no later than 15 July of each year in which the Additional Compensation eventually becomes applicable. 3.10 Should club X transfer on a definitive basis to any other third party the registration rights of the Player within August 31 2013, whenever it may occur during such term, for a transfer fee in excess of the transfer compensation plus any additional compensations eventually due and paid during the term (“Extra Value”), then club X shall correspond to club B a sum amounting to the 10% of the Extra Value. 3.11 In the event the Player is transferred by club X to any third party after September 1 2013, then club X shall pay a sum amounting to the 5% of the possible Extra Value. 3.12 The Transfer Compensation is payable to club B upon club X receipt (in whole or part) of the Extra Value. 3.13 Club X shall behave in good faith in order to disclose to club B any agreement pertaining to the application of section 3.10 and 3.11.” 3. On 18 November 2011, the Claimant lodged a claim in front of FIFA against the Respondent indicating that the player had been transferred on a definitive basis from the Respondent to the country I club, B, in the summer of 2010. Subsequently, after having been transferred back to the Respondent, the player had been transferred on a definitive basis from the Respondent to the country I club, club C, in the summer of 2011. The Claimant stated that it had contacted the Respondent to obtain information regarding the aforementioned transfers and a possible entitlement to “Extra Value”. However, according to the Claimant, the Respondent never replied. 4. On 14 December 2011, the Respondent replied to the claim lodged against it and stated that it had entered into a so-called “player-sharing agreement” with club Y in the summer of 2010, in accordance with art. 102 bis of the Internal Federal Organizational Regulations of the Football Federation of country I. Subsequently, after the player had returned to the Respondent, it had entered into a similar player-sharing agreement with club C in the summer of 2011. The Respondent explained that such player-sharing agreement is an agreement for “a kind of temporary transfer” with a mandatory term of one year, by means of which the two clubs involved share the ownership of the rights arising out of the employment agreement entered into with the player. The player-sharing agreement consists of a transfer agreement for the temporary transfer of the player as well as a “sharing agreement” pursuant to which both clubs involved “own 50% of the economic rights of the player”. 5. The Respondent further explained that, as a result of the mutual consent of the two clubs or of an auction between them upon expiry of the player-sharing agreement, the player may either be transferred on a definitive basis to the “transferee club” (e.g. club Y and club C), or he may be transferred back to the “transferor club” (e.g. the Respondent). The Respondent argued that the concept of the player-sharing agreement is equivalent to a transfer on a temporary basis, “since the transferor club is always entitled to get the player transferred back to it”. In light of the foregoing, the Respondent explained that the player was transferred back to it in the summer of 2011 upon expiry of the player-sharing agreement with club Y, and that, subsequently, it had entered into a new player-sharing agreement with club C, which was still running at the moment that the Respondent submitted its response to the Claimant’s claim. Therefore, the Respondent concluded that the condition of clause 3.10 of the transfer agreement has not been fulfilled and, consequently, the Respondent is not obliged to disclose copies of the player-sharing agreements or to pay any “Extra Value” to the Claimant. 6. The “transfer agreement” between the Respondent and club Y stipulated, inter alia, the following: “Former club: Club X (…) New club: Club Y (…) Total consideration of the transaction Euro 4,800,000 (+VAT) (Euro fourmillioneighthundredthousand/00).” 7. The “sharing agreement” between the Respondent and club Y stipulated, inter alia, the following: “The Club Y, owner of the right to benefit from the sporting activities of the player A, following the deed of final assignment of contract duly executed with the Club X, assigns to the latter, which accepts, the right to share, at a level equal to 50%, the economic effects arising out of the ownership of the contract itself. The overall consideration for the assignment of the sharing right is set in an amount equal to Euro 2,400,000.00 (twomillionfourhundredthousand/00) that Club X. undertakes to pay (…)” 8. The “transfer agreement” between the Respondent and club C stipulated, inter alia, the following: “Former club: Club X (…) New club: Club C (…) Total consideration of the transaction Euro 3,000,000 (+VAT) (Euro threemillion/00).” 9. The “sharing agreement” between the Respondent and club C stipulated, inter alia, the following: “The Club C, owner of the right to benefit from the sporting activities of the player A, following the deed of final assignment of contract duly executed with the Club X, assigns to the latter, which accepts, the right to share, at a level equal to 50%, the economic effects arising out of the ownership of the contract itself. The overall consideration for the assignment of the sharing right is set in an amount equal to Euro 1,500,000.00 (onemillionfivehundredthousand/00) that Club X undertakes to pay (…)” 10. On 13 May 2012, the Claimant submitted its response to the Respondent’s reply and referred to art. 102 bis of the Internal Federal Organizational Regulations of the Football Federation of country I which contains the wording “cessione definitiva”, meaning a transfer on a definitive basis, and stated that clause 3.10 of the transfer agreement between the Claimant and the Respondent is, therefore, applicable to the player’s transfers from the Respondent to club Y and club C respectively. The Claimant is claiming the amount of EUR 340,000, based on 10% of the “Extra Value” of EUR 4,000,000 (value of the transfer from the Respondent to club Y of EUR 1,600,000, based on 1 season, and the value of the transfer from the Respondent to club C of EUR 3,000,000, minus the transfer fee of EUR 600,000 paid by the Respondent to the Claimant), minus the amount of EUR 60,000 that was already paid by the Respondent to the Claimant. 11. The Respondent submitted its response to the latest position of the Claimant reiterating its statement that the player-sharing agreement is an agreement aimed at the temporary transfer of a player, since the transferee club (e.g. club Y and club C) has the right to immediately register the player and benefit from his services and at the same time postpone the chance to transfer the player on a definitive basis. Furthermore, the Respondent stated that it sent a letter to the Claimant on 19 January 2013, informing them that the player had been transferred on a definitive basis to club C for a transfer compensation amounting to EUR 1,200,000. Therefore, the Respondent had paid the contractual “Extra Value” of 10% of EUR 600,000, i.e. EUR 60,000, to the Claimant and therewith the claim is settled. 12. In the alternative, should the Claimant’s incorrect approach be followed, the Respondent pointed out that it never perfected a definitive transfer as it always retained 50% of the rights of the player. The Respondent argued that the Claimant’s calculation of the “Extra Value” was incorrect and that the “Extra Value” should only be based on the transfer of the player to club C (the temporary transfer with the player-sharing agreement as well as the definitive transfer) with a total value of EUR 2,700,000. To calculate the “Extra Value”, EUR 600,000 that was paid by the Respondent to the Claimant should be deducted from the aforementioned total value, resulting in an amount of EUR 2,100,000. 10% of said amount is EUR 210,000, from which EUR 60,000 shall be deducted since this was paid by the Respondent to the Claimant in January 2013. The final amount payable to the Claimant would result in EUR 150,000. 13. According to the player passport provided by the Football Federation of country I the player was registered with club Y as from 13 August 2010 until 30 June 2011 on a permanent basis. Equally, according to the aforementioned player passport, the player was registered with the Respondent as from 1 July 2011 until 22 August 2011 on a permanent basis and, thereafter, with club C as from 23 August 2011 until 30 June 2012 on a permanent basis. 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. 2 and 3 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 18 November 2011, thus after 1 July 2008 but before 1 December 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 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 2010 and 2012 editions 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 18 November 2011. 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. Furthermore, the Single Judge confirmed that, 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, he is competent to hear disputes between clubs belonging to different associations. 4. 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. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand. 5. First of all, the Single Judge acknowledged that it was undisputed between the parties that, on 23 May 2008, a transfer agreement was concluded concerning the transfer of the player from the Claimant to the Respondent. 6. Furthermore, the Single Judge took due note that, according to clause 3.10 of the transfer agreement, the Claimant was to receive 10% of the amount exceeding the total transfer fee paid by the Respondent to the Claimant for the transfer of the player, in the event the player was transferred on a definitive basis from the Respondent to any other club before 31 August 2013. 7. In continuation, the Single Judge noted that the Respondent had transferred the player to club Y in August 2010 and, subsequently, to club C in August 2011. 8. Having established the above, the Single Judge noted that the Claimant lodged a claim with FIFA against the Respondent stating it had tried to obtain information from the Respondent with regard to the transfers of the player from the Respondent to club Y and from the Respondent to club C and a possible entitlement to “Extra Value” deriving thereof. 9. The Single Judge went on to consider the Respondent’s submissions in this respect. By doing so, he took due note that the Respondent stated that it had entered into a so-called “player-sharing agreement”, in accordance with art. 102 bis of the Internal Federal Organizational Regulations of the Football Association of country I, with club Y and club C in the summer of 2010 and the summer of 2011 respectively. According to the Respondent, the concept of a “player-sharing agreement” is equivalent to a transfer on a temporary basis, “since the transferor club [e.g. the Respondent] is always entitled to get the player transferred back to it”. Therefore, the Respondent argued that the condition of clause 3.10 of the transfer agreement has not been fulfilled and, consequently, that the Respondent is not obliged to pay any “Extra Value” to the Claimant. 10. Furthermore, the Single Judge took due note of the Claimant’s comments on the Respondent’s answer, in which it stated that the referred article of the Internal Federal Organizational Regulations of the Football Association of country I contains the wording “cession definitiva”, meaning a transfer on a definitive basis. Therefore, the Claimant argued that clause 3.10 of the transfer agreement is applicable to the player’s transfers from club X to club Y and club C respectively. In this respect, the Claimant quantified its claim to the amount of EUR 340,000. 11. Likewise, the Single Judge took note of the Respondent’s final comments on the Claimant’s latest position, in which it reiterated that the “player-sharing agreement” is an agreement aimed at the temporary transfer of a player, since the transferee club (e.g. club Y and club C) has the right to immediately register the player and benefit from his services and at the same time postpone the chance to transfer the player on a definitive basis. 12. Equally, the Single Judge noted that the Respondent had informed the Claimant on 19 January 2013 that the player had been transferred on a definitive basis to club C for a transfer compensation of EUR 1,200,000 and, in this respect, the Respondent had paid the amount of EUR 60,000 to the Claimant in view of clause 3.10 of the transfer agreement. 13. Finally, the Single Judge took note of the Respondent’s statement that, in the event that the Single Judge decides that the Claimant is entitled to “Extra Value”, the amount shall be based on the transfer of the player from the Respondent to club C only, resulting in an amount of EUR 150,000. 14. After having carefully examined the parties’ positions, taking into consideration all the aforementioned arguments, the Single Judge observed that the parties, in particular, disputed whether the player’s transfers from the Respondent to club Y and club C respectively are to be considered definitive transfers and, depending on the foregoing, whether the Claimant was entitled to “Extra Value” in accordance with clause 3.10 of the transfer agreement. 15. Having said that, the Single Judge started by analysing the wording of the transfer agreement, in particular, clause 3.10 of said agreement. In this respect, the Single Judge recalled that art. 3.10 of the agreement stipulated that “Should [the Respondent] transfer on a definitive basis to any other third party the registration rights of the Player within August 31 2013, whenever it may occur during such term, for a transfer fee in excess of the transfer compensation plus any additional compensations eventually due and paid during the term (“Extra Value”), then [the Respondent] shall correspond to [the Claimant] a sum amounting to the 10% of the Extra Value” (emphasis added). 16. In this respect, the Single Judge held that clause 3.10 of the transfer agreement contains a sell-on clause which refers to a transfer of the registration rights of the player on a definitive basis. Therefore, the Single Judge was comfortably satisfied in his conclusion that only a definitive transfer of the player from the Respondent to another club would result in the entitlement of the Claimant to receive a sell-on bonus as stipulated in clause 3.10 of the transfer agreement. 17. Having established the abovementioned, the Single Judge went on to analyse whether the transfer of the player from the Respondent to the country I club, Y, was considered to be a definitive transfer. In this respect, the Single Judge observed the wording of the transfer agreement signed on 11 August 2010 by the Respondent and club Y, which stipulated, inter alia, that “the assignment of contract” was “final with player-sharing agreement” for a “total consideration of the transaction Euro 4,800,000.00”. 18. Equally, the Single Judge observed the wording of the sharing agreement signed on 11 August 2010 by the Respondent and club Y, which stipulated, inter alia, that “The Club Y, owner of the right to benefit from the sporting activities of the player A, following the deed of final assignment of contract duly executed with [the Respondent], assigns to the latter, which accepts, the right to share, at a level equal to 50%, the economic effects arising out of the ownership of the contract itself. The overall consideration for the assignment of the sharing right is set in an amount equal to Euro 2,400,000.00 (twomillionfourhundredthousand/00) that [the Respondent] undertakes to pay (…)”. 19. In this respect, the Single Judge considered that the phrases “The Club Y., owner of the right to benefit from the sporting activities of the player A” and “the right to share, at a level equal to 50%, the economic effects arising out of the ownership of the contract itself” clearly referred to a construction in which only the economic effects are shared between the Respondent and club Y. 20. Moreover, the Single Judge deemed it essential to point out that the transfer from the Respondent to club Y was a national transfer within country I and that, therefore, in the present matter, he had to consider the relevant documentation of the Football Association of country I. In this respect, the Single Judge referred to the player passport provided by the Football Association of country I, from which it can be established that the player was registered with club Y on a permanent basis on 13 August 2010. Equally, the player passport showed that on 15 July 2009, the player was loaned from the Respondent to the country I club, Z, and that thus the Football Association of country I makes a clear distinction between a loan and a “player-sharing agreement”, the latter being considered by the Football Association of country I as a registration on a definitive basis. The foregoing is also supported by art. 102 bis of the Internal Federal Organizational Regulations of the Football Association of country I which refers to a “cession definitiva”, i.e. a definitive transfer. 21. Consequently, taking into consideration the wording of clause 3.10 of the transfer agreement signed by the Claimant and the Respondent, the transfer agreement and the sharing agreement signed by the Respondent and club Y, and, in particular, the player passport issued by the Football Association of country I, the Single Judge held that the player’s transfer from the Respondent to club Y is to be considered a definitive transfer. 22. In continuation and in view of all the above, the Single Judge held that the condition of clause 3.10 of the transfer agreement concluded by the Claimant and the Respondent had been fulfilled at the time the registration rights of the player were transferred on a definitive basis from the Respondent to country Y. Consequently, the Single Judge had to establish whether there was any “Extra Value” following the player’s transfer from the Respondent to club Y as stipulated in clause 3.10 of the transfer agreement and, in the affirmative, to which share of the “Extra Value” the Claimant was entitled. 23. In this respect, the Single Judge recalled part of the wording of clause 3.10 of the transfer agreement, which stipulated that “for a transfer fee in excess of the transfer compensation plus any additional compensations eventually due and paid during the term (“Extra Value”), then [the Respondent] shall correspond to [the Claimant] a sum amounting to the 10% of the Extra Value”. 24. In this regard, the Single Judge considered that both the Claimant and the Respondent had confirmed during these proceedings that the transfer compensation paid by the Respondent to the Claimant for the transfer of the player, amounted to EUR 600,000. Consequently, the Single Judge held that any amount paid by club Y to the Respondent in excess of EUR 600,000 would result in “Extra Value” of which the Respondent shall pay 10% to the Claimant. 25. In continuation, the Single Judge recalled that, according to the transfer agreement concluded by the Respondent and club Y, the “total consideration of the transaction” was EUR 4,800,000. Equally, the Single Judge recalled that, according to the sharing agreement concluded by the Respondent and club Y, the “overall consideration for the assignment of the sharing right is set in an amount equal to Euro 2,400,000.00”. As a result, the Single Judge established that the net transfer compensation for the transfer of the player from the Respondent to club Y amounts to EUR 2,400,000. Consequently, the “Extra Value” in accordance with clause 3.10 of the transfer agreement amounts to EUR 1,800,000 (EUR 2,400,000 minus EUR 600,000). 26. In view of all the foregoing, the Single Judge concluded that the Claimant is entitled to receive 10% of the “Extra Value” of EUR 1,800,000, equivalent to EUR 180,000. Given that the Claimant confirmed that the Respondent had already paid an amount of EUR 60,000 to the Claimant, the Single Judge held that the final amount that the Respondent has to pay to the Claimant in view of the application of clause 3.10 of the transfer agreement is EUR 120,000. 27. Having established the Claimant’s entitlement to a sell-on fee on the basis of the player’s definitive transfer from the Respondent to club Y, the Single Judge turned his attention to the subsequent transfer of the player from the Respondent to club C. In this respect, the Single Judge was eager to point out that it could not have been the intention of the parties to apply clause 3.10 of the transfer agreement more than once. In this respect, the Single Judge concluded that, after having been applied to the definitive transfer of the player from the Respondent to club Y, clause 3.10 of the transfer agreement lost its effect. Consequently, the Single Judge held that it did not have to analyse the player’s transfer from the Respondent to club C. 28. 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 CHF 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). 29. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted. Therefore, the Single Judge concluded that both the Respondent and the Claimant have to bear part of the costs of the current proceedings in front of FIFA. 30. 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 amounts to EUR 340,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 31. In conclusion, and considering the complexity of the case, the Single Judge determined the costs of the current proceedings to the amount of CHF 15,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Respondent and, equally, the amount of CHF 10,000 has to be paid by the Claimant. ***** III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club B, is partially accepted. 2. The Respondent, Club X, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 120,000. 3. If the aforementioned sum is not paid within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the stipulated time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision. 4. Any further claim lodged by the Claimant is rejected. 5. The final amount of costs of the proceedings in the amount of CHF 15,000 are to be paid within 30 days as from the date of notification of the present decision as follows: 5.1. The amount of CHF 5,000 by the Respondent to FIFA to the following bank account with reference to case nr.: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 5.2. The amount of CHF 10,000 by the Claimant to FIFA. Given that the Claimant has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the additional amount of CHF 5,000 has to be paid by the Claimant to FIFA to the above-mentioned bank account. 6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance under point 2. above 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: Markus Kattner Deputy Secretary General Encl. CAS Directives