F.I.F.A. – Commissione per lo Status dei Calciatori (2014-2015) – controversie tra società – ———- F.I.F.A. – Players’ Status Committee (2014-2015) – 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 22 May 2015, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club A, country B as Claimant against the club, Club C, country D as Respondent regarding a contractual dispute between the parties relating to the Player E I.

F.I.F.A. - Commissione per lo Status dei Calciatori (2014-2015) – controversie tra società – ---------- F.I.F.A. - Players’ Status Committee (2014-2015) – 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 22 May 2015, by Geoff Thompson (England) Single Judge of the Players’ Status Committee, on the claim presented by the club, Club A, country B as Claimant against the club, Club C, country D as Respondent regarding a contractual dispute between the parties relating to the Player E I. Facts of the case 1. On 11 August 2011, the club from country B, Club A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded a transfer agreement for the transfer of the player, Player E (hereinafter: the player), from the Claimant to the Respondent for a transfer compensation of EUR 1,750,000. 2. The aforesaid transfer agreement also stipulated, inter alia, that: “1.5 If the player during his contractperiod with [the Respondent] has been transferred from [the Respondent] to another club, [the Claimant] will receive 30% (thirty per cent) of the total transfer fee received by [the Respondent].” 3. On 8 August 2014, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract indicating that the player had been transferred from the Respondent to the club from country F, Club G (hereinafter: Club G), on 23 July 2014. Consequently, the Claimant argued that art. 1.5 of the transfer agreement had matured, and, therefore, requested 30% of the total transfer compensation received by the Respondent plus 5% interest p.a. as from 30 days after the player’s registration with Club G as well as procedural costs. 4. The Claimant explained that it had been informed by the Respondent that the player was transferred to Club G free of charge due to the player’s injury record and a general decline in performance and, as a consequence, that the Claimant is not entitled to any amount. However, the Claimant argued that it is “implausible” that the player’s transfer value was zero at the moment of his transfer from the Respondent to Club G. 5. In this respect, the Claimant argued that the player is a 30 year old goalkeeper who was part of the squad of country B during the 2014 FIFA World Cup in Brazil and whose employment contract with the Respondent was still running for two more years at the moment of the transfer. Furthermore, the Claimant pointed out that two other transfers were conducted between the Respondent and Club G on 23 July 2014. In this respect, the Claimant held that “the actual value to [the Respondent] of the player’s transfer to Club G is likely to have been incorporated within the framework of the agreements by which the player and the Player H were transferred from [the Respondent] to Club G and the Player I was transferred from Club G to [the Respondent]”. The Claimant stated that it does not object to such exchange of players but that it does not release the Respondent from its obligation under art. 1.5 of the transfer agreement. 6. According to the information contained in the Transfer Matching System (TMS), the Respondent and Club G agreed, inter alia, upon the following: “1. There shall be no initial transfer fee for the Player payable. 2. Club G shall pay further 500,000 (Five hundred thousand) plus VAT on each of the first two occasions that the Player makes 25 (twenty-five) appearances for Club G in a season and Club G qualify to compete in UEFA Champions League in the subsequent season. For the avoidance of doubt, the maximum total sum payable under this clause is 1,000,000 (One million) plus VAT. (…) 3. Club G shall furthermore pay to [the Respondent] an amount equal to 10% (ten per cent) of the net transfer fee received by Club G over and above 2,000,000 (two million) from any future permanent transfer of the Player from Club G to another football club, payable within 14 days of when Club G receives the transfer amount, staged payments or otherwise.” 7. After having been informed about the information contained in the TMS, the Claimant specified its claim on 22 August 2014 arguing that the player’s transfer value is EUR 4,243,823 and, consequently, requested 30% of said amount, resulting in the amount of EUR 1,273,147, plus 5% interest p.a. as from 30 days after the player’s registration with Club G as well as procedural costs. 8. The Claimant argued that the Respondent “appears to be trying to circumvent its obligations under art. 1.5 of the transfer agreement”. According to the Claimant, the following elements shall lead to the conclusion that the three aforementioned transfers were de facto one transfer: - the three transfers took place on 23 July 2014; - the Respondent’s press release on its website containing the wording “Player I seals Club C return … while Player H and Player E complete Club G switch”; - the Respondent’s chairman, Mr J, said in an interview that “Player H went as well, Player E was part of the deal and Player I came the other way”; - Club G’ press release on its website containing the wording “we have reached agreement with [the Respondent] for the transfers of Player H and Player E … the transfers will also see Player I return to the club from country D”; - the newspaper K website reported the transfer as a “triple transfer deal”, while newspaper L published “Club G set to swap Player I for [the Respondent]’s Player H and sign international Player E from country B for 3,500,000”. 9. Moreover, the Claimant held that if there was indeed an exchange between the Respondent and Club G involving the three players, the player’s actual transfer value could only be ascertained after considering all of the agreements relating to the transfers of the three players. However, despite repeated requests by the Claimant, the Respondent was not willing to disclose to it the financial details of the transfers of the players Player H and Player I. 10. As a consequence, the Claimant calculated the player’s transfer value based on sources available to it. First of all, it referred to DRC jurisprudence in cases relating to the solidarity mechanism in which the DRC concluded that exchange of players implies directly a financial agreement due to the fact that, in practice, the relevant qualities of the players have a financial value in the football employment market. In order to establish the transfer value of the player in the present matter, the Claimant relied upon the calculation method as used by the DRC in the aforementioned jurisprudence, which pertains to the average of the transfer compensation paid for the exchanged players for their previous transfers. After adding up the previous transfer compensation of the player (EUR 1,750,000 from the Claimant to the Respondent), the Player I (8,800,000, i.e. EUR 10,981,469 from Club M to Club G) and the Player H (zero, player came through the Respondent’s youth academy), the average results in the amount of EUR 4,243,823. 11. Furthermore, the Claimant referred to a report from company N (a company from country B related to the University of country B), according to which the estimated market value of the player is EUR 5,200,000. Moreover, according to the “Player Transfer Value Calculator” from the International Centre for Sports Studies (CIES), the market value of the player is between EUR 3,900,000 and EUR 4,600,000, which leads to an average of EUR 4,250,000. Finally, the Claimant made reference to the amount of 3,500,000 (i.e. EUR 4,377,271) as announced by the newspaper L and newspaper O as well as to three other goalkeepers who transferred to clubs from country F for similar amounts. Consequently, the Claimant concluded that all the aforementioned amounts are close to the amount derived from the calculation method used in the DRC jurisprudence. 12. In reply to the Claimant’s claim, the Respondent held that it did not receive any transfer compensation from Club G and, consequently, the Claimant is not entitled to any sum. The Respondent argued that the Claimant’s claim is “entirely speculative, not based on the transfer agreement and misconceived” as well as lacking of compelling evidence. The Respondent pointed out that a sell-on clause generally involves a certain risk and not a guaranteed fee. The Respondent further elaborated on the reasons for transferring the player free of payment (the player’s numerous injuries, the need to recruit a better goalkeeper, it already had two reserve goalkeepers, the player wished to move to a bigger club, it could not afford to continue to pay the player’s wages). Furthermore, the Respondent referred to the free transfers of the goalkeeper from country P, Player Q, from Club R to Club S and from the latter to Club T and argued that such free transfers are not uncommon in the football world for commercial reasons. 13. In continuation, the Respondent argued that the fact that three different transfers took place between the Respondent and Club G on the same day, does not evidence a player exchange and argued that each of the three transfer agreements was “independent, separate and free standing”. Moreover, the Respondent held there is a difference between the abstract value of a player and the value of a transfer to a club. It is for the selling and the buying club to agree the transfer value of a player as between them, and not for a third party with a sell-on interest to intervene and determine the value of a player transfer they are not involved in. 14. Finally, with regard to the Claimant’s reference to DRC jurisprudence in cases of exchange of players, the Respondent argued that those cases concern claims regarding the solidarity mechanism and, in any case, the transfer agreements in those cases explicitly stated that players were exchanged, as opposed to the present matter where no player exchange agreement exists. If the Claimant wished to avoid the current situation, it could have negotiated a different wording of the sell-on fee. 15. In its replica, the Claimant argued that the player had only suffered from knee injuries for short periods of time and, during the 2013/2014 season, played all matches between 8 February 2014 and the end of the season, after which he was called up for the squad of country B for the 2014 FIFA World Cup. The Claimant continued to argue that the Respondent hired goalkeeper U from Club V during the summer 2014 transfer window to replace the player. Therefore, the Respondent’s argument that it could not afford to continue to pay the player “does not make sense”. Also the Respondent’s argument that the player wished to move to a bigger club is “unconvincing”, as a bigger club would be able to pay more money. 16. With regard to the transfers of the players Player I and Player H, the Claimant argued that it is implausible that both were transferred for a transfer compensation of 6,000,000, whereas Player I had a transfer value of 14,700,000 and Player H had a transfer value of 4,700,000. The Claimant held that all players were transferred for an amount below their market value and that the combined transfer values of the player and the Player H were set off against the transfer value of the Player I. Furthermore, the Claimant argued that the Respondent only stated that no direct player exchange took place, without further explanation, therewith implying that an indirect player exchange did take place. 17. Finally, the Claimant argued that the Respondent and Club G agreed upon a sell-on fee of 10% of the transfer fee received by Club G “over and above 2,000,000”, which indicates that both clubs valued the player at least at said amount at the moment of the transfer. Therefore, in the event the Players’ Status Committee does not agree to establish the player’s transfer value at EUR 4,243,823, it should at least apply the minimum amount of 2,000,000 as the player’s transfer value to which art. 1.5 of the transfer agreement applies. 18. In its duplica, the Respondent held that it was entitled to determine its business as it seeks fit and is not required to prove a particular decision is commercially sensible. The Respondent further explained that with a “direct player exchange” it meant to refer to transfer agreements which expressly provided for a player exchange. However, the Respondent emphasized that no player exchange took place, whether direct or indirect. 19. According to the information contained in TMS, on 10 July 2014 (date agreement, signed by the Respondent on 11 July 2014 and by Club G on 22 July 2014), the Respondent and Club G concluded a transfer agreement for the transfer of the player, Player I, from Club G to the Respondent under the following terms: “1. [The Respondent] shall pay to Club G a transfer fee of 6,000,000 (...) 2. [The Respondent] shall pay a further 500,000 (…) on each of the first two occasions that the Player makes 25 appearances for [the Respondent] in a season and [the Respondent] qualify to compete in a UEFA competition in the subsequent season. (…) 3. [The Respondent] shall furthermore pay to Club G an amount equal to 10% of the net transfer fee received by [the Respondent] over and above 8,000,000 from any future permanent transfer of the Player from [the Respondent] to another football club (…)” 20. Equally, on 10 July 2014 (date agreement, signed by the Respondent on 11 July 2014 and by Club G on 22 July 2014), the Respondent and Club G concluded a transfer agreement for the transfer of the player, Player H, from the Respondent to Club G under the following terms: “1. Club G shall pay to [the Respondent] a transfer fee of 6,000,000 (...) 2. Club G shall pay a further 500,000 (…) on each of the first two occasions that the Player makes 25 appearances for Club G in a season and Club G qualify to compete in a UEFA competition in the subsequent season. (…) 3. Club G shall furthermore pay to [the Respondent] an amount equal to 10% of the net transfer fee received by Club G over and above 8,000,000 from any future permanent transfer of the Player from Club G to another football club (…)” 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 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (editions 2014 and 2015) as well as to the fact that the present matter was submitted to FIFA on 8 August 2014. Therefore, the Single Judge concluded that the 2014 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 2014 and 2015 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 8 August 2014. In view of the foregoing, the Single Judge concluded that the 2014 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. 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 11 August 2011, a transfer agreement was concluded between them concerning the transfer of the player from the Claimant to the Respondent and that said transfer agreement contained a sell-on clause in favour of the Claimant. 6. Equally, the Single Judge acknowledged that it was undisputed between the parties that, in July 2014, a transfer agreement was concluded between the Respondent and Club G concerning the transfer of the player from the Respondent to Club G, which stipulated that said transfer was free of charge. 7. Furthermore, the Single Judge acknowledged that it was undisputed between the parties that, in July 2014, two further transfer agreements were concluded between the Respondent and Club G concerning the transfers of the players Player H (from the Respondent to Club G) and Player I (from Club G to the Respondent). 8. Having established the above, the Single Judge took note that the Claimant maintained that it was entitled to receive a sell-on fee in the amount of EUR 1,273,147 from the Respondent, indicating that an exchange of players occurred between the Respondent and Club G, involving the Player E as well as the players Player H and Player I, and that the player’s actual transfer value within the aforementioned transfer constellation was to be estimated at EUR 4,243,823 instead of zero. 9. Equally, the Single Judge took note of the Respondent’s submission that it had not received any transfer compensation from Club G for the transfer of the player and that no exchange of players had taken place, but merely three separate transfers between Club G and the Respondent and, therefore, the Claimant is not entitled to any amount. 10. After having carefully examined the parties’ positions, taking into consideration all the aforementioned arguments, the Single Judge observed that the parties disputed whether an exchange of players had taken place between Club G and the Respondent. 11. In this respect, the Single Judge turned his attention to the transfer agreement between the Respondent and Club G, dated 10 July 2014 but signed by the Respondent and Club G on 11 July 2014 and 22 July 2014 respectively, concerning the transfer of the player from the Respondent to Club G and recalled that said clubs had agreed upon a transfer free of charge, however, with the inclusion of a contingent payment up to a maximum of GPB 1,000,000. 12. Equally, the Single Judge turned his attention to the transfer agreements between the Respondent and Club G, dated 10 July 2014 but signed by the Respondent and Club G on 11 July 2014 and 22 July 2014 respectively, concerning the transfers of the players Player H (from the Respondent to Club G) and Player I (from Club G to the Respondent) and recalled that said clubs had agreed upon a transfer compensation of 6,000,000 for each player. 13. At this point, the Single Judge deemed important to highlight that it is not very common that a player with the characteristics of the Player E, with a valid employment contract, is transferred free of charge by his club to another club. Furthermore, the Single Judge considered it quite an extraordinary situation that three transfers were conducted between the Respondent and Club G on the same date, one of which was free of charge and both others for a compensation of 6,000,000. 14. However, the Single Judge considered that there is no provision that prohibits the transfer of a player free of charge and that this could be a business decision of the Respondent. The Single Judge also pointed out that the Respondent and Club G had agreed on the contingent payment of an amount up to 1,000,000, should certain conditions be fulfilled, and that thus an amount could potentially fall due for the transfer of the Player E from the Respondent to Club G. 15. Furthermore, after a thorough analysis of the three aforementioned transfer agreements, the Single Judge observed that none of said transfer agreements contained a reference to the other transfers or an exchange of players between the Respondent and Club G. The foregoing facts are therefore also significantly different from the jurisprudence of the DRC to which the Claimant referred, since the relevant cases all involved one transfer agreement by means of which two players were exchanged and in which the parties to the dispute never disputed that an exchange had taken place. 16. In view of the foregoing, the Single Judge concluded that it was clear that three independent and separate transfers had been concluded between the Respondent and Club G and that none of the transfer agreements contained a reference to an exchange of players. 17. Furthermore, the Single Judge considered the documentation submitted by the Claimant and concluded that the Claimant had not provided corroborative evidence which would lead to a different conclusion than the one set out previously. In this respect, the Single Judge pointed out that the existence of an exchange of players must be proven and it cannot be based on mere presumptions. In this context, the Single Judge does not find that the press articles submitted by the Claimant form conclusive evidence that the transfer of the Player E was part of an exchange of players. 18. The Single Judge repeated that he was facing an extraordinary situation, but held that such situation is not enough to conclude that an exchange of players had taken place within which the Respondent and Club G had valued the player’s market price higher than zero. 19. In view of all the foregoing, the Single Judge decided to reject the Claimant’s claim. 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 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). 21. In respect of the above, and taking into account that the Claimant is the unsuccessful party in the present proceedings, the Single Judge concluded that the procedural costs are to be borne by the Claimant. 22. Furthermore and according to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 1,273,147. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 23. As a result, taking into account the particularities of the present matter as well as that the claim of the Claimant has been rejected, the Single Judge determined the costs of the current proceedings to the amount of CHF 12,000, which shall be borne by the Claimant. ***** III. Decision of the Single Judge of the Players’ Status Committee 1. The claim of the Claimant, Club A, is rejected. 2. The final costs of the proceedings in the amount of CHF 12,000 are to be paid by the Claimant within 30 days as from the date of notification of the present decision, 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 amount of CHF 7,000 is to be paid to FIFA to the following bank account with reference to case nr. XXXX: UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A ***** Note relating to the motivated decision (legal remedy): According to article 67 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly within 21 days of receipt of notification of this decision and shall contain all the elements in accordance with point 2 of the directives issued by the CAS, a copy of which we enclose hereto. Within another 10 days following the expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating the facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the directives). The full address and contact numbers of the CAS are the following: Court of Arbitration for Sport Avenue de Beaumont 2 1012 Lausanne - Switzerland Tel: +41 21 613 50 00 Fax: +41 21 613 50 01 e-mail: info@tas-cas.org www.tas-cas.org For the Single Judge of the Players’ Status Committee: Jérôme Valcke Secretary General Encl. CAS Directives