F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2016-2017) – fifa.com – atto non ufficiale – Decision 22 November 2016

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 November 2016,

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

Player E

I. Facts of the case

1. On 25 January 2014, the Club of Country B, Club A (hereinafter: the Claimant), and the Club of 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. The aforesaid transfer agreement stipulated, inter alia, that:

“4. In case of future Player’s definitive transfer to a third club, [the Respondent] agrees to pay [the Claimant] 50’000 EUR (fifty thousand euro)”.

2. On 11 May 2016, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract indicating that the Respondent had failed to pay the amount of EUR 50,000 for the alleged definitive transfer of the player from the Respondent to the Club of Country F, Club G, as stipulated in clause 4 of the transfer agreement. In view of the foregoing, the Claimant requested the payment of EUR 50,000 plus 5% interest p.a. as of 22 August 2014.

3. In support of its claim, the Claimant explained that according to the player’s profile on the web page “transfermarkt”, the latter was apparently transferred from the Respondent to Club G on 23 July 2014.

4. In reply to the Claimant’s claim, the Respondent stressed that it was only obliged to pay to the Claimant the additional amount of EUR 50,000 in case the player would be transferred on a definitive basis to a third club “during period of professional contract”. In this respect, the Respondent pointed out that no definitive transfer occurred from the Respondent to any third club.

5. Moreover, the Respondent argued that the employment contract between itself and the player was terminated by mutual agreement on 26 June 2014. After the termination of the contract, the Respondent explained that it was not aware of any further information regarding the player’s career as he left the Respondent as a free agent.

6. Furthermore, the Respondent stressed that according to a TMS report it can be noted that it did not receive any transfer fee from a third club in connection with the transfer of the player.

***

Player E

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 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber were applicable to the matter at hand. In this respect, he referred to art. 21 of the Procedural Rules as well as to the fact that the present matter was submitted to FIFA on 11 May 2016. Therefore, the Single Judge concluded that the 2015 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 Regulations on the Status and Transfer of Players and, on the other hand, once again to the fact that the claim was lodged in front of FIFA on 11 May 2016, thus before 1 June 2016. In view of the foregoing, the Single Judge concluded that the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand.

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 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. In this respect, the Single Judge noted that the parties had concluded a contract for the definitive transfer of the player from the Claimant to the Respondent, according to which the Claimant, in case of a definitive transfer of the player to a third club, will be entitled to a compensation of EUR 50,000.

6. The Single Judge then reverted to the allegations of the Claimant and noted that it had claimed that the Respondent, despite the fact that the player was

Player E allegedly transferred to the Club of Country F, Club G, did not pay the amount of EUR 50,000, as agreed in the transfer agreement.

7. Concerning the arguments raised by the Respondent, the Single Judge observed that the latter had argued in essence that the amount in question was only due in case the player would be transferred on a definitive basis to a third club “during period of professional contract”. In this regard, the Single Judge noted that the Respondent stressed that no definitive transfer occurred from it to any third club and that the player and the Respondent terminated the player’s employment contract by mutual agreement on 26 June 2014.

8. On account of the above, the Single Judge started by recalling the disputed clause agreed upon between the respective parties, which states that “In case of future Player’s definitive transfer to a third club, [the Respondent] agrees to pay [the Claimant] 50’000 EUR (fifty thousand euro)“.

9. In this regard, the Single Judge, considering the strict wording of the clause, noted that the sole condition, in order for the compensation of EUR 50,000 to become due, was the definitive transfer of the player from the Respondent to a third club.

10. Equally, the Single Judge noted that according to the information contained in the Transfer Matching System (hereinafter: the TMS), the player was registered with Club G on 21 July 2014 and the ITC was issued on the same day.

11. In this context, the Single Judge was eager to emphasise that the TMS was conceive, amongst others, to protect the integrity of the competitions, to increase transparency of individual transactions and to improve the credibility and standing of the entire transfer system. In this regard, Annexe 3 of the Regulations forms the regulatory framework for the use of TMS in relation to international transfers of players and along the different articles, it is clearly specified that the use of the TMS is a mandatory step for all international transfers of professional male players within the scope of eleven-a-side football (cf. art. 1 par. 5. of Annexe 3 of the Regulations). In the same article it is also specified that the term “international transfer” will exclusively refer to the transfer of such players between associations. In this regard, the TMS also requires associations to ensure that is indeed a real player who is being transferred (cf. art. 1 par. 2 of Annexe 3 of the Regulations). This actual transfer will always entail the delivery of the International Transfer Certificate (hereinafter: the ITC) from the former association to the new association (cf. in particular art. 8 of Annexe 3 of the Regulations, but also art. 9 par. 1 of the Regulations).

Player E

12. Furthermore, the Single Judge was keen to underline that it is evident from the various provisions referred to above, but also from the entire registration process described not only in art. 8 of Annexe 3 of the Regulations, but also in art. 5 to 10 of the latter, that the Regulations envisage and govern the actual and physical move of a player between clubs belonging to different associations, respectively the transfer of his registration between different associations. The ITC is, in this respect, the actual illustration of such basic and fundamental principle.

13. With those aforementioned indications in mind, the Single Judge observed that, contrary to the argument raised by the Respondent, the parties did not agree upon a condition whereby the amount should have only been paid if the player would be transferred during the term of his professional contract.

14. Therefore and in view of all of the above, the Single Judge came to the conclusion that the sole condition, in order for the compensation of EUR 50,000 to become due, was the definitive transfer of the player, i.e. the actual and physical move of the player from the Respondent to a third club, respectively the transfer of his registration from the Respondent’s association to the third club’s association.

15. Having established the above, the Single Judge determined that, in accordance with the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Respondent has to pay the Claimant the outstanding compensation in the amount of EUR 50,000 in accordance with the transfer agreement.

16. Moreover, taking into consideration the Claimant’s claim, the Single Judge decided that the Respondent has to pay, in conformity with its longstanding practice, interest at 5% p.a. over the outstanding compensation as of 22 August 2014, until the date of effective payment.

17. 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).

18. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 50,000, related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000.

Player E

19. As a result, and taking into account that the claim of the Claimant is accepted, the Single judge determined the costs of the current proceedings to the amount of CHF 7,000, which shall be borne by the Respondent.

*****

Decision of the Single Judge of the Players’ Status Committee

1. The claim of the Claimant, Club A, is accepted.

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of the present decision, the amount of EUR 50,000 plus 5% interest p.a. on said amount as of 22 August 2014 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision.

4. The final costs of the proceedings in the amount of CHF 7,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows:

4.1. The amount of CHF 5,000 has to be paid to FIFA to the following bank account:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

4.2. The amount of CHF 2,000 has to be paid directly to the Claimant.

5. The Claimant is directed to inform the Respondent directly and immediately of the account number to which the remittances are to be made in accordance with the above points 2. and 4.2. and to notify the Players’ Status Committee of every payment received.

Player E

*****

Note relating to the motivated decision (legal remedy):

According to article 58 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

For the Single Judge of the

Players’ Status Committee:

Marco Villiger

Deputy Secretary General

Encl. CAS Directives