DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - COMMISSIONE PER LO STATUS DEI CALCIATORI - CONTROVERSIE TRA SOCIETA'

• Data decisione: 27 luglio 2016 • Stagione sportiva: 2016/2017

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 27 July 2016

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 27 July 2016,

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 27 May 2011, the club from country B, Club A (hereinafter: the Claimant), the club from country D, Club C (hereinafter: the Respondent) and the player, Player E (hereinafter: the player), concluded a transfer agreement for the transfer of the player from the Claimant to the Respondent.

2. The aforementioned transfer agreement stipulated, inter alia, that:

“2.1 In consideration for the transfer of the Player, [the Respondent] as sole owner of 100% of the economic and financial rights arising from the transfer of the player hereby agrees that it will assign to Club [i.e. the Claimant], during the term of the New Contract, a percentage of the economic and financial rights arising from any eventual transfer of the Player as set out (…) below.

2.2 In the event that an offer is received and accepted either by [the Respondent] in relation to the permanent transfer of the Player to another football club, whether in country D or internationally (…), the Club [i.e. the Claimant] shall be entitled to receive 30% of [the Respondent]’s entitlement to 100%. Such sum shall relate either to a) the net amount of fees subject to the Transfer Offer; or b) in the event the Player unlawfully terminates the New Contract, paying [the Respondent] the penalty fee provided in the New Contract.

2.3 [The Respondent] shall provide the Club copies of any and all documents, invoices and agreements relating to the eventual permanent transfer of the Player as evidences of the gross and net transfer fee agreed to be paid to [the Respondent] regarding the Transfer Offer of the Player.”

3. On 26 August 2015, the Claimant lodged a claim in front of FIFA against the Respondent for breach of contract indicating that the player was transferred on a definitive basis from the Respondent to the club from country D, Club F, on 19 June 2015. In view of the foregoing, the Claimant requested the payment of 30% of the transfer fee paid by Club F to the Respondent, plus interest and “other costs incurred for the present procedure” as well as damages in the amount of EUR 30,000.

4. In support of its claim, the Claimant submitted an extract from a webpage and argued that the transfer compensation paid by Club F to the Respondent amounted to EUR 1,500,000.

5. In reply to the claim, the Respondent first referred to art. 13 par. 1 of the transfer agreement of 27 May 2011 according to which “in case of any conflict between the provisions contained in the different versions, the English version shall prevail”. Consequently, the Respondent held that the language of the procedure shall be English and not French as used by the Claimant in its claim.

6. Furthermore, the Respondent stated that it transferred 50% of the “economic rights” of the player to Club F for an amount of 2,500,000, as a result of which the “economic rights” of the player are now divided as follows: Club F 50%, the Respondent 20% and the Claimant 30%. In the event that the Players’ Status Committee decides that the Respondent has to pay a sell-on fee to the Claimant, it could only be calculated as 30% of 2,500,000. In this respect, the Respondent stated that the Claimant was already aware of the transfer compensation of 2,500,000 prior to lodging its claim in front of FIFA, as it can be concluded from the documentation enclosed to its claim.

7. In its replica, the Claimant referred to art. 9 par. of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber in conjunction with art. 8 of the FIFA Statutes and argued that it could submit its position in the French language.

8. As to the agreement provided by the Respondent, the Claimant pointed out that said agreement does not stipulate that the amount of 2,500,000 represents only 50% of the transfer compensation of the player. Furthermore, the Claimant emphasized that the agreement provided by the Respondent concerns the loan transfer of the player from the Respondent to Club F, which could become a permanent transfer if Club F paid the amount of 2,500,000 to the Respondent at the latest on 10 May 2015. Moreover, the Claimant pointed out that the loan agreement between the Respondent and Club F contains a provision according to which, in the event of the transfer of the player from the Respondent to Club F becoming permanent, both the Respondent and Club F are entitled to 50% of a future transfer of the player. In this respect, the Claimant stated that the player has remained with Club F after 10 May 2015, which indicates that the transfer has become permanent. In support of its statement, the Claimant provided an extract from a webpage according to which Club F has transferred the player on loan to the club from country D, Club G, in January 2016. Consequently, the Claimant held that the Respondent has probably received its part of the loan compensation without informing the Claimant.

9. In continuation, the Claimant argued that the Respondent acted in bad faith and against the principle of pacta sunt servanda by not informing it of the subsequent transfer of the player in accordance with art. 2.3 of the transfer agreement of 27 May 2011.

10. Finally, the Claimant specified its claim and requested the amount of 750,000 or EUR 188,000. In addition, the Claimant reiterated its claim for damages in the amount of EUR 30,000 and claimed the reimbursement of the advance of costs and other expenses related to the procedure in the total amount of EUR 5,500 from the Respondent as well as 5% interest p.a. as of 30 days after the notification of the decision.

11. In its duplica, the Respondent first referred to art. 10 par. 2 of the transfer agreement of 27 May 2011, according to which “the language to be used in any law proceedings shall be English”. Consequently, the Respondent held that the “dispute should be preliminary terminated” since the Claimant has drafted its submissions in French.

12. Furthermore, the Respondent explained that, until 15 June 2015, the Claimant (30%) and the Respondent (70%) co-owned the “economic rights” of the player. After 15 June 2015, the Respondent transferred 50% of the “economic rights” to Club F, reducing its own part of the “economic rights” of the player to 20%. In this respect, the Respondent argued that the new situation is in favour of the Claimant, since Club F is a bigger club than the Respondent, giving the Claimant a much higher profitability with its share in a future transfer of the player.

13. As to the player’s loan transfer from Club F to Club G, the Respondent stated that such transfer was free of charge and, consequently, the Respondent has not received any payment for this transfer. Equally, the Respondent argued that it has not received any compensation for the definitive transfer of the player to Club F, as the amount of 2,500,000 was paid for the loan transfer of the player to Club F. Consequently, the Respondent held that the Claimant is currently not entitled to any compensation.

14. The transfer agreement concluded between the Respondent and Club F contains, inter alia, the following provisions (originally drafted in language H, quoted from the English translation provided by the Respondent):

“2.1 In consideration to this “borrowing” [Club F] undertakes to pay to [the Respondent] the amount of 2.500.000,00 (…) in 05 (five) monthly instalments, equal and successive 500,000.00 (…) each, in 08/01/2015, 10/02/2015, 10/03/2015, 10/04/2015 and 10/05/2015 maturing respectively.

(…)

6.1 This “borrowing” will be effective from 01.01.2015 until 10/05/2015.

(…)

Clause Eight – The definitive assignment of federative rights and 50% (…) of the economic rights to [Club F]

8.1 The athlete federative rights will be assigned definitively to [Club F] if it has made full payment of the agreed price in clause 2.1 above, to [the Respondent], until 10/05/2015.

(…)

8.3 Taking place the definitive transfer of the federative rights of the athlete to [Club F], it is agreed that any earned value with the athlete’s economic rights in relation to the future sport contract and another(s) that might be signed between [Club F] and athlete, will be divided in the following proportions:

(i) [Club F] – 50% (fifty percent); and

(ii) [the Respondent] - 50% (fifty percent)”

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 (edition 2015; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 26 August 2015, thus after 1 April 2015. Therefore, the Single Judge concluded that the 2015 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 2015 and 2016 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 26 August 2015. 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 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 before entering into the substance of the matter, the Single Judge wished to emphasize that, according to art. 9 par. 1 of the Procedural Rules, petitions shall be submitted in one of the four official FIFA languages. With reference to art. 8 par. 1 of the FIFA Statutes (edition 2015), which stipulates that English, Spanish, French and German are the official languages of FIFA, the Single Judge confirmed that the Claimant had proceeded in accordance with the aforementioned provisions by submitting its claim in French and, consequently, the Respondent’s position in this respect cannot be upheld.

5. Having said that, 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.

6. First of all, the Single Judge acknowledged that it was undisputed between the parties that, on 27 May 2011, a transfer agreement was concluded relating to the transfer of the player from the Claimant to the Respondent which provided, inter alia, for the following:

7. Equally, the Single Judge acknowledged that it was undisputed between the parties that the player had been subsequently transferred from the Respondent to the club from country D, Club F, on a temporary basis and, thereafter, on a permanent basis.

8. Furthermore, the Single Judge observed that the Claimant indicated that the Respondent still owed the Claimant the amount of 750,000 pertaining to the sell-on fee agreed upon between the parties in art. 2.2 of the transfer agreement.

9. Moreover, the Single Judge took note that, in its reply, the Respondent provided a copy of the transfer agreement concluded with Club F on 19 December 2014 and argued that it had transferred 50% of the “economic rights” of the player to Club F for an amount of () 2,500,000, as a result of which the “economic rights” of the player were divided as follows: Club F 50%, the Respondent 20% and the Claimant 30%.

10. For the sake of good order, the Single Judge was keen to emphasize that the so-called “economic rights” is a term that has become obsolete since the entry into force of the 2001 edition of the Regulations for the Status and Transfer of Players, when it was replaced by the principle of maintenance of contractual stability between the contracting parties, i.e. professional players and football clubs.

11. In continuation, the Single Judge understood that the Respondent argued that the Claimant had maintained its entitlement to receive 30% of the transfer compensation for a future transfer of the player from Club F to another club.

12. At this point, the Single Judge turned his attention to the sell-on clause laid down in the transfer agreement concluded between the Claimant and the Respondent, which clearly establishes an entitlement for the Claimant to receive 30% of the compensation received by the Respondent for a permanent transfer to another football club, whether in country D or internationally.

13. In this respect, the Single Judge reiterated that the Respondent had acknowledged that it had transferred the player on a temporary basis to Club F and, thereafter, on a permanent basis to the same club. However, the Single Judge observed that the Respondent argued that the loan transfer of the player to Club F was against payment of 2,500,000 and the definitive transfer of the player to said club was free of charge. Consequently, the Respondent held that no compensation was due to the Claimant.

14. The Single Judge was eager to analyze the transfer agreement concluded between the Respondent and Club F and observed that said agreement contained the following relevant clauses:

(…)

6.1 This “borrowing” will be effective from 01.01.2015 until 10/05/2015.

(…)

Clause Eight – The definitive assignment of federative rights and 50% (…) of the economic rights to [Club F]

8.1 The athlete federative rights will be assigned definitively to [Club F] if it has made full payment of the agreed price in clause 2.1 above, to [the Respondent], until 10/05/2015.

(…)

(i) [Club F] – 50% (fifty percent); and

(ii) [the Respondent] - 50% (fifty percent)”

15. In this respect, the Single Judge understood that the intention of the Respondent and Club F was to transfer the player to the latter on a permanent basis, subject to the condition that Club F would fulfil its payment obligations as stipulated in art. 2.1 of the transfer agreement cited above. In other words, art. 8.3 of the transfer agreement concluded between the Respondent and Club F provided the Respondent with the certainty that by 10 May 2015, it would either have received the full transfer compensation (i.e. 2,500,000) from Club F, or the player would return to the Respondent. Considering the foregoing, the Single Judge concluded that the amount of 2,500,000 agreed upon as compensation between the Respondent and Club F was in fact a transfer compensation for the permanent transfer of the player.

16. Having established the above and with reference to art. 2.2 of the transfer agreement signed by the Claimant and the Respondent, the Single Judge concluded that the Claimant is entitled to a sell-on fee of 750,000, i.e. 30% of the transfer compensation of 2,500,000 agreed upon between the Respondent and Club F for the permanent transfer of the player to the latter. In addition, taking into consideration the Claimant’s claim, the Single Judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of 750,000 as of 30 days after the notification of the decision.

17. Furthermore, the Single Judge decided to reject the Claimant’s claim for “other costs incurred for the present procedure” in accordance with art. 18 par. 4 of the Procedural Rules, which stipulates that in proceedings of the Players’ Status Committee no procedural compensation shall be awarded. Equally, the Single Judge decided to reject the Claimant’s claim for damages in the amount of EUR 30,000 since it has no legal or regulatory basis and pointed out that no corroborating evidence had been submitted that demonstrated or quantified the alleged damage suffered (cf. art. 12 par. 3 of the Procedural Rules).

18. 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).

19. In respect of the above, and taking into account that the Claimant is the successful party in the present proceedings, the Single Judge concluded that the Respondent has to bear the full costs of the current proceedings before FIFA.

20. 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 750,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 20,000.

21. In conclusion, and considering the complexity of the case at hand, the Single Judge determined the costs of the current proceedings to the amount of CHF 18,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge of the Players’ Status Committee decided that the amount of CHF 18,000 has to be paid by the Respondent.

*****

III. Decision of the Single Judge of the Players’ Status Committee

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

2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of 750,000.

3. If the aforementioned sum is not paid within the stated time limit, interest at a 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 costs of the proceedings in the amount of CHF 18,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows:

5.1. The amount of CHF 13,000 has 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

5.2. The amount of CHF 5,000 has to be paid directly to the Claimant.

6. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under point 2. and 5.2. above are 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 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

www.tas-cas.org

For the Single Judge of the

Players’ Status Committee:

Marco Villiger

Deputy Secretary General

Encl. CAS Directives