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

• Data decisione: 17 aprile 2018 • Stagione sportiva: 2017/2018

F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2017-2018) – fifa.com – atto non ufficiale – Decision 17 April 2018

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 17 April 2018,

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, Player E

Player E

I. Facts of the case

1. On 31 August 2014, the club of Country B, Club A (hereinafter: the Claimant) and the club of Country D, Club C (hereinafter: the Respondent) signed a transfer agreement (hereinafter: the agreement) by means of which the Claimant would permanently transfer the player, Player E (hereinafter: the player) to the Respondent without any payment of a transfer fee or any other remuneration.

2. However, according to article 3 of the agreement, “1. [the Respondent] recognizes to [the Claimant] the right to receive, in a future and definitive transfer of the Player 15% of the net transfer fee. For this purpose the Parties agree to define as “net transfer fee” the amount of the transfer price (or the amount received by [the Respondent] for the termination of the employment agreement) after deduction of costs related to intermediation and the amounts that may be incurred in respect of Training Compensation and Solidarity Mechanism, pursuant to art.’s 20. and 21. of the FIFA Regulation of the Status and Transfer of Players.

2. The amount referred in previous paragraph shall be paid in a proportional way (pro rata) until 15 days after the receipt by [the Respondent] of the transfer fee and subject to delivery of the respective invoice. [The Claimant] shall send to [the Claimant], upon request, a copy of the possible transfer agreement.

3. Furthermore, according to article 7 of the agreement, “any changes to this [agreement] shall be valid only as long as agreed in writing by the all parties with express reference to the clauses deleted and the wording of each added or modified”.

4. On 31 August 2016, the Respondent and the Claimant concluded a second agreement (hereinafter: the amendment).

5. Article 3 of the amendment stated inter alia that, “as compensation for the sale of the economic rights over the player [the Respondent] will pay to [the Claimant] 10% instead of 15%, against invoice, as follows: 15/09/2016 for the fixe amount of transfer fees; and 15 days after potential bonus or future rights on”.

6. On 7 April 2017, the Claimant lodged a claim in front of FIFA against the Respondent, alleging that the latter did not comply with its contractual duties and failed to pay the amount to which it was entitled in accordance with the agreement and its amendment, following the transfer of the player from the Respondent to the club of Country D, Club F.

7. In this respect, the Claimant alleged that on 31 August 2016, the Respondent transferred the player to Club F, upon payment of a transfer fee in the amount of EUR 6,500,000, VAT at the rate of 23% not included.

8. In addition, the Claimant alleged that it was informed of the transfer of the player to Club F not earlier than 9 November 2016 and that it received the transfer agreement from the Respondent only on 5 December 2016.

9. In continuation, the Claimant explained that, by means of an invoice dated 16 February 2017 and a letter dated 3 March 2017, it reminded the Respondent of the outstanding payment of the amount of EUR 650,000 corresponding to 10% of the subsequent transfer fee, setting a time limit of 8 days to remedy the default.

10. Furthermore, the Claimant provided FIFA with a document dated 20 February 2017 and signed by Mr. G , by means of which the latter alleged being entitled to receive a commission in the amount of EUR 650,000 for having acted as intermediary in relation with the transfer of the player from the Respondent to Club F.

11. In this regard, the Claimant alleged that the Respondent refused to provide it with a copy of the alleged intermediary contract concluded between Mr. G and the Respondent, a copy of the alleged invoice of Mr. G addressed to the Respondent as well as the alleged effective payment receipt of the amount of EUR 650,000.

12. Consequently, the Claimant requested from the Respondent the amount of EUR 650,000 corresponding to 10% of the transfer fee of EUR 6,500,000, plus interest at a rate of 5% p.a. on the said amount as from 15 September 2016 until the date of effective payment.

13. In its reply to the claim lodged against it, the Respondent acknowledged the transfer of the player to Club F on 31 August 2016 for the amount of EUR 6,500,000, however, contested the allegations of the Claimant.

14. In this respect, the Respondent acknowledged that the amount to be paid to the Claimant in relation with the transfer of the player is EUR 585,000, invoking the amount of EUR 650,000 as intermediary commission allegedly paid and which must be deducted from the transfer compensation.

15. The Respondent further explained that, “the only reason why [the Claimant] did not receive any amount so far is because despite of the effort and requests of [the Respondent] [the Claimant] never sent to [the Respondent] the invoice of 585,000

EURO plus the bank details for the payment”. Nevertheless, the Respondent acknowledged having received the invoice dated 16 February 2017 from the Claimant indicating the amount of EUR 650,000 to be paid no later than 15 September 2016, but explained that “the invoice was rejected and returned to [the Claimant] because the amount and the payment date were not correct”.

16. Finally, the Respondent acknowledged that, ”there is no doubt that [the Claimant] has the right to receive (only) 10% of the transfer fee (6,500,000 EURO) minus the agent fee (650,000 EURO), what is equal to 585,000 EURO” and further claimed that, “the 585,000 EURO owed will be paid in the terms agreed, this is (2 conditions): (1) in a pro rate basis (“proportional way”), 15 days after the receipt by [the Respondent] of the transfer fee [Club F] will pay to [the Respondent] as follows: total transfer fee of 6,500,000 EURO in 4 (four) instalments, 750,000 EURO in 31 January 2017, 2,000,000 EURO in 01 July 2017, 1,875,000 EURO in 01 January 2018, and 1,875,000 EURO in 20 June 2018) and (2) subject to delivery of the respective invoice by [the Claimant]”.

17. In its replica, the Claimant reiterated its position and maintained all its previous arguments.

18. In this respect, the Claimant alleged that according to the list of the Football Federation of Country D on intermediaries and available on internet, for the period between 1 April 2016 until 31 March 2017, Mr. G did not act as intermediary in relation with the transfer of the player on 31 August 2016, as his name does not appear on the aforementioned list.

19. Furthermore, the Claimant claimed that the Respondent is acting in bad faith and established a fake document according to which an alleged agent fee according to article 11 of the National Regulations of the Football Federation of Country D on agents would be due. In this respect, the Claimant further explained that according to article 11 par. 3 lit. c) of the National Regulations of the Football Federation of Country D on agents, the maximum amount due as agent fee in a transfer is limited to 5% of the transfer fee. Therefore, a rate up to 10% is not allowed.

20. In its duplica, the Respondent rejected the allegations of the Claimant and maintained all its previous arguments.

II. Considerations of the Single Judge of the 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 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) was applicable to the matter at hand. In this respect, considering that the present matter was submitted to FIFA on 7 April 2017, the Single Judge concluded that the 2017 edition of the Procedural Rules is applicable in the matter at hand (cf. art. 21 of the 2017 and 2018 editions of the Procedural Rules).

2. Subsequently, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players (hereinafter: “the Regulations”) should be applicable as to the substance of the matter. In this respect, he confirmed that the present matter was submitted to FIFA on 7 April 2017 and, therefore, concluded that the 2016 edition of the Regulations is applicable in the matter at hand as to the substance (cf. art. 26 par. 1 and par. 2 of the 2016 and 2018 editions of the Regulations).

3. 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 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.

4. His competence and the applicable regulations having been established and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. However, the Single Judge emphasised that in the following considerations he will refer only to the facts, arguments and documentary evidence that he considered pertinent for the assessment of the matter at hand.

5. In doing so and to begin with, the Single Judge acknowledged that, on 31 August 2014, the Respondent and the Claimant concluded an agreement in relation with the transfer of the player from the latter to the Respondent, by means of which the parties agreed that no payment of a transfer fee or any other remuneration was due for such transfer.

6. Nevertheless, the Single Judge noted the content of article 3 of the agreement which stated inter alia that, “[the Respondent] recognizes to [the Claimant] the right to receive, in a future and definitive transfer of the Player 15% of the net transfer fee. For this purpose the Parties agree to define as “net transfer fee” the amount of the transfer price (or the amount received by [the Respondent] for the termination of the employment agreement) after deduction of costs related to intermediation and the amounts that may be incurred in respect of Training Compensation and Solidarity Mechanism, pursuant to art.’s 20. And 21. of the FIFA Regulation of the Status and Transfer of Players.

7. Subsequently, the Single Judge acknowledged that on 31 August 2016, the Claimant and the Respondent concluded an amendment to the agreement of 31 August 2014, by means of which they agreed that, “as compensation for the sale of the economic rights over the player [the Respondent] will pay to [the Claimant] 10% instead of 15%, against invoice, as follows: 15/09/2016 for the fixe amount of transfer fees; and 15 days after potential bonus or future rights on”.

8. Furthermore, the Single Judge noted that it is undisputed between the parties that the player was transferred from the Respondent to Club F, on 31 August 2016, for a transfer compensation of EUR 6,500,000.

9. In continuation, the Single Judge noted that, on the one hand, the Claimant maintained being entitled to receive from the Respondent the outstanding amount of EUR 650,000, plus interest at a rate of 5% p.a. on the said amount as from 15 September 2016 until the date of effective payment, alleging that it had not received the amount corresponding to 10% of the transfer fee agreed upon between the Respondent and Club F, which fell due on 15 September 2016 in accordance with the agreement and the amendment.

10. On the other hand, for the purpose of its defence, with regard to the payment of EUR 650,000 corresponding to 10% of the transfer fee, the Single Judge observed that the Respondent maintained that “there is no doubt that [the Claimant] has the right to receive (only) 10% of the transfer fee (6,500,000 EURO) minus the agent fee (650,000 EURO), what is equal to 585,000 EURO”.

11. At this stage, the Single Judge referred to art. 12 par. 3 of the Procedural Rules according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

12. In doing so, the Single Judge thoroughly analyzed the documents on file and, in particular, the content of the documentation and allegations submitted by the parties. In this regard, first of all, the Single Judge recalled that the Claimant provided FIFA with a copy of the invoice dated 16 February 2017 and a letter dated 3 March 2017, by means of which it reminded the Respondent of the outstanding payment of the amount of EUR 650,000 corresponding to 10% of the transfer fee agreed upon between the Respondent and Club F.

13. Secondly, the Single Judge took into account that, for its part, the Respondent merely referred to a declaration of the alleged intermediary involved in the transfer of the player to Club F, but failed to provide conclusive evidence from which it could be established that indeed an intermediary agreement existed with said intermediary and that a commission was effectively paid to the latter.

14. As a result, considering the legal principle of burden of proof as well as the argumentation and documentation presented by both parties, the Single Judge deemed that the allegation of the Respondent could not be followed and decided to reject the latter’s position and argumentation.

15. In continuation, turning his attention to the Claimant’s request amounting to EUR 650,000 corresponding to 10% of the subsequent transfer fee in accordance with the agreement and the amendment, as well as to the due date of 15 September 2016 established in the latter document, the Single Judge emphasised that it was undisputed that such amount had not been paid by the Respondent and was, therefore, still due.

16. Bearing in mind the aforementioned and the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, the Single Judge decided that the Respondent had breached its contractual obligations towards the Claimant and should, as a consequence, be liable to pay to the Claimant the amount of EUR 650,000 in accordance with the agreement and the amendment concluded between the parties.

17. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and held that the Respondent has to pay to the Claimant the amount of EUR 650,000, plus interest at a rate of 5% p.a. over the said amount as from 16 September 2016 until the date of effective payment and that any further claims lodged by the Claimant are rejected.

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 the proceedings before the Players’ Status Committee and the Single Judge, costs in the maximum amount of CHF 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.

19. In respect of the above, and taking into account that the Claimant’s claim was partially accepted, the Single Judge concluded that both the Claimant as well as the Respondent have to bear a part of the 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. Consequently and taking into account that the total amount at dispute in the present matter is over CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

21. In conclusion, and considering the particularities of the present matter, the Single Judge determined the costs of the current proceedings to the amount of CHF 20,000. Furthermore, and in line with his aforementioned considerations and taking into account the degree of success, the Single Judge decided that the amount of CHF 5,000 has to be paid by the Claimant and the amount of CHF 15,000 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, Club A, within 30 days as from the date of notification of this decision, the amount of EUR 650,000 as well as 5% interest p.a. on the said amount as from 16 September 2016 until the date of effective payment.

3. If the aforementioned sum, plus interest, is not paid within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. Any further claims lodged by the Claimant, Club A, are rejected.

5. The final costs of the proceedings in the amount of CHF 20,000 are to be paid within 30 days as from the date of notification of this decision, as follows:

5.1 The amount of CHF 5,000 has to be paid by the Claimant, Club A, to FIFA. Given that the Claimant, Club A, has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the latter is exempted to pay the cited amount.

5.2 The amount of CHF 15,000 has to be paid by the Respondent, Club C, to FIFA, to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

6. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittance under point 2 above is 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 art. 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

Omar Ongaro

Football Regulatory Director

Encl. CAS directives