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 7 May 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club W, from country B as Claimant against the club, Club R, from country A as Respondent regarding a contractual dispute between the parties 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 7 May 2014, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club W, from country B as Claimant against the club, Club R, from country A as Respondent regarding a contractual dispute between the parties relating to the player J I. Facts of the case 1. On 1 July 2009, Club W, from country B (hereinafter: the Claimant) and the Club R, from country A (hereinafter: the Respondent), concluded a transfer agreement (hereinafter: the agreement) for the transfer of the player J (hereinafter: the player), from the Claimant to the Respondent. 2. The agreement inter alia provided for a “sell-on-clause”, stipulating the following: “ART. 6 [The Claimant] will be entitled to participate in the future transfer of the player from [the Respondent] to a third club under the following conditions: A) If the transfer is carried out before the 1st September 2011, [the Claimant] will be entitled to receive 25 (…) % of the difference between the transfer price and the amount of Euro 425.000,- (…) ART. 9 (…) This contract may not be altered, amended, changed or modified, unless the same shall be in writing and signed by the parties.” 3. On 19 August 2010, the player was transferred from the Respondent to Club P, from country S (hereinafter: Club P) against payment of transfer compensation in the amount of EUR 3,750,000, payable in three equal instalments of EUR 1,250,000, the first within three days after the registration of the player with Club P, then on 27 August 2011 and on 27 August 2012, respectively. 4. On 7 September 2010, after the Respondent provided the Claimant with a copy of the transfer agreement concluded with Club P, the Respondent, via email, sent the following payment plan to the Claimant: Contractual date of payment Amount EUR Minus 5% Solidarity EUR Net Amount EUR Deductible EUR Amount payable EUR Date of payment 06/09/2010 1,250,000 - 62,500 1,187,500 - 425,000 190,625 Within 10 days after receipt of invoice from [the Claimant] 27/08/2011 1,250,000 - 62,500 1,187,500 0 296,875 After 1 week of receipt from [Club P] and within 10 days after receipt of invoice from [the Claimant] 27/08/2012 1,250,000 - 62,500 1,187,500 0 296,875 After 1 week of receipt from [Club P] and within 10 days after receipt of invoice from [the Claimant] Total: 3,750,000 - 187,500 3,562,000 - 425,000 784,375 5. On 6 February 2013, the Claimant lodged a claim at FIFA, requesting from the Respondent the payment of the amount of EUR 296,875 based on art. 6 par A. of the transfer agreement with the Respondent, plus 5% interest p.a. on said amount as of the date when the alleged breach of contract by the Respondent occurred. In addition, the Claimant is requesting reimbursement of the procedural costs incurred from the present proceedings in the amount of EUR 15,000. 6. In support of its claim, the Claimant stated that after receiving the amounts of EUR 190,625 and EUR 296,875, based on the “sell-on-clause” provided for in art. 6 par. A of the agreement and the payment plan, the Respondent failed to comply with its further contractual obligations. 7. In its reply, the Respondent argued that according to the payment plan, the third instalment was only payable by it upon receipt of the third instalment of transfer compensation from Club P. However, given that Club P never paid the third instalment of transfer compensation to the Respondent in accordance with the payment plan, the third instalment of EUR 296,875 has not yet fallen due. 8. Furthermore, the Respondent referred to its email by which it sent the abovementioned payment plan to the Claimant and, in particular, referred to the latter’s response: “Thank you XY. All the best!” In this regard, the Respondent stressed that the Claimant by stating “All the best!” explicitly accepted said payment plan. 9. In its replica, the Claimant argued that it never accepted the payment plan. In particular, the Claimant emphasized that the expression “all the best” was a well-known English elliptical construction and complementary close, i.e. an equivalent to “Good luck” or “Best wishes”, hence by no means a statement of compliance. 10. Moreover, the Claimant stressed that it would never have accepted a clause making the payment of the relevant amount dependent on the receipt of transfer compensation by the Respondent, as this would have completely moved the risk of bankruptcy of the Respondent’s contractual partners onto the Claimant. 11. Finally, the Claimant held that art. 9 of the agreement explicitly states that “this contract may not be altered, amended, changed or modified, unless the same shall be in writing and signed by the parties.” Therefore, a unilateral alteration of the transfer agreement without a new written agreement was inadmissible. What is more, the stipulations of the payment plan have no legal effect and the payment of the outstanding amount of EUR 296,875 should not depend on the receipt of payments by the Respondent from Club P. 12. In its final position, the Respondent stressed that the payment plan did not provide for an amendment or an alteration of the transfer agreement, as said payment plan only stipulated the dates of payment of the “sell-on-amounts”, i.e. something which was not even constituted in the transfer agreement. 13. Moreover, the Respondent argued that even in case that the payment plan was not accepted by the Claimant, the Respondent would not have the obligation to pay any amounts to the Claimant before it received transfer compensation from Club P, since the transfer agreement did not stipulate any provision governing such circumstance. Therefore, the Respondent argued that in case a contract does not govern certain aspects, such legal omission has to be rectified by applying a supplementary interpretation of the agreement and by establishing the hypothetical will of the parties, i.e. to establish what the parties would have agreed upon in case they would have known about the regulatory gap in the contract. In this context, the Respondent stressed that it would never have agreed to an obligation to pay any “sell-on-amounts” to the Claimant before having received the respective amounts of transfer compensation. II. Considerations of the Single Judge of the Players’ Status Committee 1. In a first instance, 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 (edition 2008; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 6 February 2013, 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 2012 edition 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 6 February 2013. In view of the foregoing, the Single Judge concluded that the 2012 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 was competent to deal with the present matter since it concerned a dispute between two clubs affiliated to two 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. 5. In this respect, the Single Judge established that it was undisputed between the parties that they concluded, on 1 July 2009, an agreement regarding the transfer of the player from the Claimant to the Respondent. 6. Furthermore, the Single Judge noted that the agreement in art. 6 provided for a “sell-on-clause” which stipulated that in case the player would be transferred from the Respondent to a third club, the Claimant would be entitled to receive 25% of the amount of transfer compensation exceeding EUR 425,000. 7. Moreover, the Single Judge noted that it was also undisputed between the parties that on 19 August 2010, the player was transferred from the Respondent to Club P against payment of transfer compensation in the amount of EUR 3,750,000, payable in three equal instalments of EUR 1,250,000, the first within three days after the registration of the player with Club P, then on 27 August 2011 and on 27 August 2012 respectively. From these instalments, only the first two instalments have been paid by Club P to the Respondent until the present date. 8. The Single Judge also acknowledged that the Claimant lodged a claim against the Respondent, stating that the latter had not fulfilled its payment obligation in relation to the aforementioned “sell-on-clause” as stipulated in article 6 of the agreement. As a consequence, the Claimant requested from the Respondent the payment of the total amount of EUR 296,875 plus 5% interest p.a. on said amount “as of the date when the breach by Club R occurred”. 9. Concerning the arguments raised by the Respondent, the Single Judge observed that the latter argued in essence that according to a payment plan it sent to the Claimant via email on 7 September 2010 and which was allegedly accepted by the Claimant also via email on the same day (cf. point I.8), the third instalment was only payable by it upon receipt of the third instalment of transfer compensation from Club P. However, given that Club P never paid the third instalment of transfer compensation to the Respondent, in accordance with the payment plan, the third instalment of EUR 296,875 has not yet fallen due. 10. Moreover, the Single Judge recalled the further argument of the Respondent that it would never have agreed to an obligation to pay any “sell-on-fee” to the Claimant before having received the respective amounts of transfer compensation from the third club. 11. In response to the Respondent’s argumentation the Claimant stated that it never explicitly accepted the terms of the payment plan and that it would never have agreed to accept a clause making the payment of the relevant “sell-on-fee” dependent on the receipt of transfer compensation by the Respondent, as this would have completely moved the risk of bankruptcy of the Respondent’s contractual partners onto the Claimant. 12. In this context, the Single Judge considered that the issue in the present matter would be to determine whether the Claimant’s right to a ‘’sell-on-fee’’ would be fixed as of the conclusion of a contractual agreement between the Respondent and a third club or if rather such entitlement would be subject to subsequent events such as the receipt by the Respondent of the amounts stipulated in the contract with the third club. 13. In view of the foregoing and in order to establish whether the Respondent has to pay the “sell-on-fee” of EUR 296,875 to the Claimant, the Singe Judge focussed his attention on the wording of the “sell-on-clause” in order to determine if the Respondent could retain the respective “sell-on-fee” for the third instalments of transfer compensation, which fell due on 27 August 2012 but was never paid by Club P to the Respondent. 14. In this context, the Single Judge recalled that said “sell-on-clause” stipulated that “[the Claimant] will be entitled to participate in the future transfer of the player from [the Respondent] to a third club (…)” and that “[the Claimant] will be entitled to receive 25 (…) % of the difference between the transfer price and the amount of Euro 425.000,- (…). 15. This being established, the Single Judge drew its attention to the wording of the afore-mentioned clause and particularly to the term “participate”, which, literally implies the action of taking part in something. Transferring this literal sense onto the wording of the “sell-on-clause”, the Single Judge formed the belief that in order to participate in a “transfer price” as stipulated in the “sell-on-clause”, it is necessary that such “transfer price” is actually paid to the club which is originally entitled to receive such compensation. In this context, the Single Judge emphasized that any other interpretation of said clause would even lead to a double penalty of the Respondent, which would on the one hand be unable to collect its claims and entitlements for transfer compensation from Club P and, on the other hand, would be compelled to pay 25% of a compensation it never received to the Claimant. 16. In line with the above, the Single Judge deemed it fit to point out that the above-mentioned assessment reflects the general nature of ‘’sell-on-fees’’ and the fact that such contractual agreements, per se, are not definitive and are subject to undetermined future events. Therefore, in the present matter, the Single Judge considered that the Respondent’s obligation to pay a share of the transfer compensation agreed with Club P to the Claimant could not be set as of the moment of the conclusion of the contract with Club P and was subject to the subsequent receipt of the relevant amounts by the Respondent. 17. Furthermore, reverting to the parties’ argumentation regarding the question whether a binding payment plan had been agreed or not, the Single Judge emphasised that regardless of the existence of such an agreement, the obligation lying on the Respondent, as stated above, was subject to future events which were not certain at the time the emails in question were exchanged. Thus, the Single Judge deemed that the parties’ argumentation in this regard did not have any influence on the assessment of the present matter and were to be disregarded. 18. In conclusion, the Single Judge decided to reject the Claimant’s claim based on the “sell-on-clause”. 19. Subsequently, the Single Judge turned its attention to the Claimant’s request for reimbursement of the procedural costs incurred from the present proceedings in the amount of EUR 15,000. In this regard, the Single Judge decided to reject the Claimant’s claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the Players’ Status Committee’s respective longstanding jurisprudence in this regard. 20. 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). 21. In respect of the above, and taking into account that the claim of the Claimant has been rejected, the Single Judge concluded that the procedural costs are to be borne by the Claimant. 22. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the bases of the amount in dispute. 23. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 311,875 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 Annexe A.) which have to be borne by the Claimant. 24. Considering the difficulties of the present case and bearing in mind that it was adjudicated upon by the Single Judge and not the Players’ Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of currency of country H 14,000. ***** III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club W, is rejected. 2. The final costs of the proceedings in the amount of currency of country H 14,000 are to be paid by the Claimant. Given that the Claimant already paid an advance of costs of currency of country H 5,000 at the beginning of the present proceedings, the latter has to pay the amount of currency of country H 9,000 within 30 days as from the notification of the present decision to FIFA to the following bank account with reference to case nr.: ***** 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