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 A as “Claimant” against the club Club N, from country I as “Respondent” regarding a contractual dispute arisen between the parties and relating to the player J.

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 A as “Claimant” against the club Club N, from country I as “Respondent” regarding a contractual dispute arisen between the parties and relating to the player J. I. Facts of the case 1. On 9 September 2011, Club B, from country A (hereinafter: the Claimant) lodged a claim with FIFA against Club N, from country I (hereinafter: the Respondent), on the basis of an agreement (hereinafter: the agreement), written in language S, which had allegedly been concluded between the parties on 30 January 2009 in connection with the transfer of the Player J, from country A (hereinafter: the player) to the Respondent and in accordance with which the Respondent had to pay to the Claimant, as transfer fee, USD 6,666,700 (hereinafter: the transfer fee) as follows: USD 366,700 within 5 days; USD 2,100,000 on 31 December 2009; USD 2,100,000 on 30 June 2010 and USD 2,100,000 on 30 June 2011. In this respect, the Claimant requested from the Respondent the payment of USD 306,302.90, allegedly corresponding to 4,6% of the transfer fee, plus 5% interest on the claimed amount as from 30 June 2011. 2. In its reasoning and to begin with, the Claimant referred to par. 4 of the agreement, which reads as follows: “(.. )Asimismo los pagos establecidos en la clausula TERCERA incluyen el pago correspondientes a la indemnización por derecho de formación y mecanismo de solidariedad correspondiente a Club B”, i.e. the payments established in clause 3 include the payment corresponding to solidarity contribution and training compensation that corresponds to Club B. According to the Claimant, the relevant provision provided that the payment of solidarity contribution and training compensation corresponding to its own entitlement was included in the transfer fee. In this context, the Claimant stressed that only the solidarity contribution which it was entitled to as a training club of the player was included in the transfer fee. Furthermore, the Claimant recalled that in accordance with Annexe 5 of FIFA’s Regulations on the Status and Transfer of Players, the new club of a player has to distribute 5% of the transfer fee due as solidarity contribution to the clubs involved in his training and education. 3. In continuation, the Claimant mentioned that according to the player passport of the player, the percentage of solidarity contribution due to it amounted to 0,40% and corresponded to 293 days, taking into account the registration of the player with the Claimant between 3 August 2006 and 26 May 2007. 4. In this regard, the Claimant provided FIFA with the following player passport of the player issued by the country A Football Association: 1996/1997 Club C country A amateur 14/03/1996 2005/2006 Club C country A professional 26/06/2005 2006/2007 Club C country A professional 26/05/2006 2006/2007 Club B country A professional 03/08/2006 2007/2008 Club C country A professional 26/05/2007 2007/2008 Club C country A professional 01/08/2007 2008/2009 Club C country A professional 26/05/2008 2008/2009 Club C country A professional 06/08/2008 2009/2010 country I country I professional 06/2/2009 5. The player passport further indicates that the player was born in May 1984. Furthermore, the country A Football Association has confirmed that the sporting season in country A runs as follows: a) for amateurs (under 20 years of age) from January until December of the relevant year and b) for amateurs (more than 20 years of age) and professionals from 1 July until 30 June of the following year. 6. The Claimant considered that the remaining percentage of solidarity contribution payable in connection with the transfer of the player, i.e. 4,6 %, and which had to be distributed by the Respondent, could not be deducted from the transfer fee, since the transfer fee payable as per the agreement was net and only included the percentage of the solidarity contribution due to the Claimant. 7. Hence, the Claimant deemed that it is entitled to receive from the Respondent the amount of USD 306,302.90, which was allegedly deducted illegally by the latter from the transfer fee. 8. In its response dated 14 October 2011, the Respondent rejected the Claimant’s claim in its entirety. 9. In this respect and first of all, the Respondent alleged that two versions of the transfer agreement were signed by the parties, one written in language S and one written in language I, whereas the one provided by the Claimant in its claim did not entirely correspond to the two in the Respondent’s possession. In this regard, par. 4 of the language I and language S version provided by the Respondent (hereinafter: the second version) read as follows: “(..) Asimismo los pagos establecidos en la clausula TERCERA incluyen el pago correspondiente a la indemnizacion por derecho de formación y mecanismo de solidariedad correspondiente”, i.e. the payments established in clause 3 include the payment corresponding to the corresponding solidarity contribution and training compensation. According to the Respondent, the second version specified in a general way that the payment of solidarity contribution and training compensation owed in connection with the transfer of the player was included in the transfer fee, i.e. the relevant clause did not only mention the payments due to the Claimant. 10. According to the Respondent, considering the wording of the relevant provision included in par. 4 in fine of the second version, the Claimant should have paid the solidarity contribution due in accordance with the transfer of the player to all clubs concerned. Similarly, the Respondent argued that even taking into account the wording of the same provision included in the agreement, it would have been the Claimant’s responsibility to proceed to the payment of solidarity contribution, as the relevant clause did not indicate that “the sum includes only the contribution for solidarity mechanism to Club B.” In the Respondent’s opinion, the clear intention of the parties was for the Claimant to pay the solidarity contribution due in connection with the transfer of the player and distribute it to the clubs involved. In this regard, the Respondent referred to a bank guarantee for the amount of USD 6,300,000 issued by an country I bank in favour of the Claimant on 9 February 2009, and apparently accepted by the latter, which specifies, in its translation into English, that “if, at any time within the deadline for payment of the fourth instalment, that is, by the deadline of June 30, 2011, the undersigned Bank shall receive by the country I club a written notice concerning a deduction of 5% (..) on the transfer agreement, as a solidarity contribution to redistribute, complying with applicable laws and regulations, it is understood that the amount corresponding to the fourth instalment amounting to U.S. $ 2,100,000 (..) and the related guarantee on your behalf will be automatically reduced to the amount of U.S. $ 1,766,665 (..)” In this case the total amount of the guarantee provided will reduce at the amount of 5,966,665.00 U.S. dollars (…)”. 11. In continuation, the Respondent explained having all the same proceeded to the payment of the solidarity contribution due to Club C, from country A, i.e. the sum USD 306,302.90, following the Claimant’s failure to pay the relevant amount itself and in accordance with FIFA’s jurisprudence. 12. In view of all the above, the Respondent deemed that the amount of USD 306,302.90 had correctly been deducted from the transfer fee and should not be paid to the Claimant. 13. In its replica, the Claimant reiterated the content of its claim. In addition, the Claimant requested the Respondent to provide the original of the second version in order for an expertise to be conducted. Furthermore and as to the possibility of a 5% reduction on the transfer fee provided in the bank guarantee presented by the Respondent (cf. point 10 above), the Claimant considered that it did not imply a reduction on the obligation of the Respondent to pay the entire transfer fee nor that it had accepted such a reduction. Besides, Club B alleged having contested the relevant deduction on 17 March and 14 June 2011. 14. In its final position on 21 November 2011, the Respondent reiterated the content of its previous submission and stressed that it only considered the second version of the agreement as the valid one. II. Considerations of the Single Judge Players’ Status Committee 1. First of all, the Single Judge of the Players’ Status Committee (hereinafter also referred to as: 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 2008 and 2012 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules). The present matter was submitted to FIFA on 9 September 2011, thus after 1 July 2008 and 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, with regard to his competence, 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 the 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. 3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be 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 with FIFA on 9 September 2011. In view of the foregoing, the Single Judge concluded that the 2010 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance. 4. His competence and the applicable regulations having been established, and entering into the substance of the present matter, the Single Judge started by acknowledging the above mentioned facts of the dispute, the arguments of the parties as well as the documentation contained in the file. 5. In doing so and first of all, the Single Judge observed that it remains undisputed between the parties that they had concluded an agreement regarding the transfer of the player from the Respondent to the Claimant. However, the Single Judge observed that two different versions of the same agreement seemed to have been signed by the parties, one mentioning that the payment of solidarity contribution and training compensation corresponding to the Respondent was included in the transfer fee (hereinafter: the first version) and the second one indicating in general that the payment of solidarity contribution and training compensation owed in connection with the transfer of the player was included in the transfer fee (hereinafter: the second version). 6. In continuation, the Single Judge observed that, in its claim to FIFA, the Claimant had accused the Respondent of having wrongfully deducted from the transfer fee due the amount of USD 306,302.90 payable to Club C, from country A as solidarity contribution although in accordance with the first version, the latter should have merely proceed to discount the amount of solidarity contribution due to it. Hence, the Claimant deemed being entitled to receive from the Respondent the alleged outstanding sum of USD 306,302.90. 7. Equally, the Single Judge took note that for its part, the Respondent had contested the validity of the first version and had asserted that, as agreed by the parties, the solidarity contribution owed in connection with the transfer of the player was to be paid by the Claimant using the transfer fee. In addition, the Single Judge noticed that, according to the Respondent, eventually, it had been obliged to pay the amount of USD 306,302.90 to Club C as solidarity contribution following the Claimant’s failure to do so and in order to comply with FIFA’s jurisprudence. 8. Bearing in mind the foregoing, to begin with and before questioning the authenticity and/or validity of the two versions of the agreement on file, the Single Judge found it worthwhile to recall that according to art. 21 in connection with Annexe 5 of the Regulations, if a professional player moves during the course of a contract, 5% of any compensation, not including training compensation paid to his former club, shall be deducted from the total amount of this compensation and be distributed by the new club as solidarity contribution to the club(s) involved in the training and education of the player in proportion to the number of years the player has been registered with the relevant clubs between the sporting seasons of his 12th and 23rd birthday. 9. Furthermore, the Single Judge outlined that the solidarity mechanism is a principle well-established in the Regulations, from which the parties signing a transfer contract cannot derogate through the contents of a contract. In other words, the obligation to distribute solidarity contribution cannot be set aside by means of a contract concluded between the clubs involved in a player’s transfer. 10. Nevertheless, the Single Judge went on recalling that the Court of Arbitration for Sport (CAS) has recognized that, if at all, the parties to a transfer or loan agreement may agree to a deviation from the Regulations by establishing a transfer fee “net” of solidarity contribution. Nonetheless such a deviation from the Regulations can only occur by means of a contractual agreement between the parties involved and on the basis of a clear clause contained in such agreement. 11. With the aforementioned considerations in mind and reverting to the dispute at stake, the Single Judge pointed out that, in casu, neither version of the agreement provided by the parties included a clear provision indicating their explicit will to derogate from the general principle related to the payment of solidarity contribution included in the Regulations, that is that 5% shall be deducted from the amount of compensation to be distributed by the new club to the player’s training clubs. 12. As a result, the Single Judge established that in casu the payment of solidarity contribution to the clubs involved in the training and education of the player over the years had to occur in accordance with the Regulations and consequently, the Claimant as the player’s new club, had to deduct 5% of the transfer fee in order to distribute it accordingly to the relevant clubs. 13. In view of the aforementioned and taking into account that it was undisputed that the sum of USD 306,302.90 was due to Club C as solidarity contribution in connection with the transfer of the player to the Respondent, the Single Judge concluded that by retaining the amount in question from the transfer fee and by then paying it to Club C, the Claimant had acted in accordance with the Regulations. Equally, the Claimant could not provide sufficient evidence that the parties to the agreement had agreed to a different mode of distribution and/or calculation of the solidarity contribution. Hence, the Respondent is not entitled to receive from the Claimant the additional amount of USD 306,302.90. 14. In view of all the above, the Single Judge decided that the claim of the Claimant has to be rejected. 15. Finally, 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 and 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 and are normally to be paid by the unsuccessful party. 16. In this respect, the Single Judge reiterated that the claim of the Claimant is rejected. Therefore, the Single Judge decided that the Claimant has to bear the entire costs of the current proceedings in front of FIFA. 17. 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 over currency of country H 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to currency of country H 25,000. 18. 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 show a certain degree of factual difficulties and specific legal complexities, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 18,000. 19. Consequently, the Claimant has to pay currency of country H 18,000 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 rejected. 2. The final costs of the proceedings in the amount of currency of country H 18,000 are to be paid by the Claimant, Club B. Considering that the Claimant, Club B, already paid the amount of currency of country H 5,000 as advance of costs, the latter has to pay the remaining amount of currency of country H 13,000 within 30 days as from the date of notification of the present decision to the following bank account with reference to case nr.: ***** 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