F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2018-2019) – fifa.com – atto non ufficiale – Decision 22 August 2018

Decision of the Single Judge

of the Players’ Status Committee

passed in Zurich, Switzerland, on 22 August 2018,

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 arisen between the parties

and relating to the player Player E.

I. Facts of the case

1. On 10 February 2015, the Club of Country B, Club A (hereinafter: the Claimant) concluded a transfer agreement (hereinafter: the transfer agreement) with the Club of Country D, Club C (hereinafter: the Respondent) in relation to the transfer of the player, Player E (hereinafter: the player) to the latter club, by means of which Club C undertook to pay to Club A, as transfer fee, the sum of USD 2,000,000 “upon signature of the present transfer agreement”.

2. In addition, in accordance with art. 1 .5. of the transfer agreement, the Claimant was entitled to receive from the Respondent the following bonuses “should Club C [i.e. the Respondent] win:

- the League F, (..) a bonus of 250,000.00 US (..);

- the Cup G(..) a bonus of 150,000.00 USD (..);

- the Cup H(..) a bonus of 100,000.00 USD (..);

- the League J(..) a bonus of 300,000.00 USD (..).”

3. Art. 1.6. of the transfer agreement further clarified that “all the above bonuses shall be recognised in proportion to the period of registration of the player to Club C and will be due only during the seasons the Player is registered with Club C. In case of a future transfer(s), the bonuses will be paid for an amount proportioned at the period of Player’s registration for Club C.”

4. “The above bonus (clause 1.6.) will be paid within 2 (two) months after the victory of the relevant cups” (cf. art. 1.7. of the transfer agreement).

5. On 4 April 2018, the Claimant lodged a claim with FIFA against the Respondent on the basis of the transfer agreement and requested from the latter club the payment of outstanding bonuses in the total amount USD 300,000, plus 5% interests p.a. as follows: on the amount of USD 250,000 as of 8 July 2016 and on the amount of USD 50,000 as of 1 June 2017. In addition, the Claimant requested the reimbursement of all costs incurred “in an amount to be determined at the discretion of the FIFA PSC” and asked FIFA to sanction the Respondent in accordance with art. 12bis of the Regulations on the Status and Transfer of Players.

6. In this respect, the Claimant explained that, on 8 May 2016, the Respondent had “played the last match of the League F 2015-2016 becoming the champion of the competition” and, therefore, on 8 July 2016, the latter should have paid “the related bonus” in accordance with art. 1.5. and 1.7. of the transfer agreement. In this respect, the Claimant provided FIFA with two printouts.

7. Furthermore, the Claimant alleged that, before winning the “Cup H 2016/2017” on 1 April 2017, the Respondent transferred the player to the Club of Country K, Club L on 2 January 2017. In this respect, the Claimant provided FIFA with a copy of the relevant transfer agreement as well as two printouts from the internet. Hence, from the Claimant’s point of view, on 1 June 2017, the deadline for the Respondent “to pay the related bonus (..) expired”.

8. In view of the aforementioned, the Claimant deemed being entitled to claim from the Respondent the payment of the sum of USD 250,000, corresponding to the bonus due in connection with “the League F” in the 2015/2016 season, as well as the amount of USD 50,000, corresponding to the bonus due on a pro rata basis as per art. 1.5. and 1.6. of the transfer agreement in connection with “the Cup H 2016/2017” (i.e. 50% of USD 100,000).

9. In spite of having been asked to do so, the Respondent never provided FIFA with a response to the claim lodged against it by the Claimant.

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 Procedural Rules are applicable to the matter at hand. In view of the fact that the present matter was submitted to FIFA on 4 April 2018, the Single Judge of the Players’ Status Committee concluded that the 2018 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 present matter (cf. art. 21 of the Procedural Rules).

2. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be 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 2016 and 2018 editions of the Regulations on the Status and Transfer of Players and, on the other hand, to the fact that the claim was lodged with FIFA on 4 April 2018. In view of the foregoing, the Single Judge concluded that the January 2018 edition of the FIFA Regulations for the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the case at hand as to the substance.

3. Subsequently, 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 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 present matter, the Single Judge started by acknowledging the facts of the dispute, the arguments of the parties as well as the documentation contained in the file.

5. In doing so, the Single Judge observed that the Respondent had not submitted any comments in response to the claim lodged against it by the Claimant despite having been asked to do so by FIFA. Therefore, the Single Judge concluded that, in this way, the Respondent had renounced to its right of defence and, thus, it had to be assumed that it had accepted the allegations of the Claimant.

6. Hence and bearing in mind the aforementioned, the Single Judge referred to art. 9 par. 3 of the Procedural Rules and pointed out that in the present matter a decision shall be taken upon the basis of the documents on file, in other words upon the allegations and documents provided by the Claimant. The Single Judge, however, 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.

7. In this respect, the Single Judge acknowledged that, on 10 February 2015, the Claimant and the Respondent had concluded a transfer agreement which provided for the Claimant to receive from the Respondent the sum of USD 2,000,000 as transfer fee. Furthermore, the Single Judge remarked that, in accordance with art. 1.5. of the transfer agreement, the Claimant was additionally entitled to receive from the Respondent several bonuses in case the latter won the following competitions: “the League F, (..) a bonus of 250,000.00 US (..); the Cup G(..) a bonus of 150,000.00 USD (..); the Cup H(..) a bonus of 100,000.00 USD (..); the League J(..) a bonus of 300,000.00 USD (..).”

8. In addition, the Single Judge observed that, in accordance with art. 1.6. of the agreement, “all the above bonuses shall be recognised in proportion to the period of registration of the player to Club C and will be due only during the seasons the Player is registered with Club C. In case of a future transfer(s), the bonuses will be paid for an amount proportioned at the period of Player’s registration for Club C.” In the same context, the Single Judge also noted that, as per art. 1.7. of the transfer agreement “The above bonus (clause 1.6.) will be paid within 2 (two) months after the victory of the relevant cups”.

9. In continuation, the Single Judge took note that, in its claim to FIFA, the Claimant had inter alia requested from the Respondent the payment of outstanding bonuses in the total amount of USD 300,000 arguing that the Respondent had won the “League F 2015-2016” on 8 May 2016 and the “Cup H 2016/2017” on 1 April 2017. As to that, the Single Judge also noted that, according to the allegations made by the Claimant, the player had been transferred from the Respondent to the Club of Country K, Club L on 2 January 2017.

10. Finally, the Single Judge recalled that none of allegations of the Claimant had been contested by the Respondent.

11. Bearing in mind the foregoing, the Single Judge recalled that the Claimant had provided two printouts from the internet indicating that the Respondent had won the “League F 2015-2016” on 8 May 2016 and that the Respondent never contested having won the relevant competition.

12. In view of the above and 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, taking into account the content of art. 1.5. of the transfer agreement and recalling the evidence provided by the Claimant as to the Respondent having won the League F 2015-2016 as well as considering that the Respondent never contested having failed to pay the bonus due in connection with such win, i.e. the sum of USD 250,000, the Single Judge concluded that the Respondent, in order to fulfil its obligations towards the Claimant stipulated in the transfer agreement, has to pay to the Claimant the outstanding amount of USD 250,000.

13. After having established the aforementioned and as to the second part of the Claimant’s claim, i.e. its request related to the payment of the amount of USD 50,000 as bonus on a pro rata basis following the win by the Respondent of the “Cup H 2016/2017” on 8 July 2016, the Single Judge recalled that the Claimant had provided two printouts from the internet in support of the allegation that the cup in question was indeed won by the Respondent. Equally, the Single Judge emphasized again that such allegation of the Claimant had not been contested by the Respondent.

14. In the same context, the Single Judge further recalled that the Claimant had also provided evidence indicating that the player had been transferred to a third club by the Respondent on 2 January 2017.

15. Bearing in mind all of the aforementioned and referring once again to the basic legal principle of pacta sunt servanda, which in essence means that agreements must be respected by the parties in good faith, taking into account the content of art. 1.5. in connection with art. 1.6. of the transfer agreement and recalling the evidence provided by the Claimant as to the Respondent having won the “Cup H 2016/2017”, considering the player’s transfer to a third club at the beginning of January 2017 and the fact that the Respondent had never contested having failed to pay the bonus due in connection with winning the “Cup H 2016/2017”, the Single Judge concluded that the Respondent, in order to fulfil its obligations towards the Claimant stipulated in the transfer agreement, has to pay to the Claimant the outstanding amount of USD 50,000 corresponding to the bonus on a pro rata basis in relation to the Respondent having won the “Cup H 2016/2017” .

16. In addition, taking into consideration the Claimant’s claim as well as the content of art. 1.7. of the transfer agreement, the Single Judge decided to award the Claimant interest at the rate of 5% p.a. on the amount of USD 300,000 as from the due dates, i.e. 9 July 2016 and 2 June 2017 respectively.

17. As a result, the Single Judge established that the Respondent has to pay to the Claimant 5% interest p.a. as follows: 5% p.a. over the amount of USD 250,000 from 9 July 2016 until the date of effective payment and 5% p.a. over the amount of USD 50,000 from 2 June 2017 until the date of effective payment.

18. In continuation and as to the request of the Claimant to be awarded the reimbursement of an unspecified amount of costs allegedly incurred, the Single Judge referred to art. 18 par. 4 of the Procedural Rules and stressed that no procedural compensation shall be awarded in proceedings of the Players’ Status Committee and the DRC. As a result, the Single Judge established that this request of the Claimant has to be rejected for lack of legal basis.

19. In conclusion, the Single Judge decided that the claim of the Claimant is partially accepted and that the Respondent has to pay to the Claimant the outstanding amount of USD 300,000, plus 5% interests p.a. as follows: 5% p.a. over the amount of USD 250,000 from 9 July 2016 until the date of effective payment and 5% p.a. over the amount of USD 50,000 from 2 June 2017 until the date of effective payment.

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 the proceedings before the Players’ Status Committee, including 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 (cf. art. 18 par. 1 of the Procedural Rules).

21. In this respect, the Single Judge reiterated that the claim of the Claimant is to a considerable extend accepted and that the Respondent is the party at fault. Therefore, the Single Judge decided that the Respondent has to bear the entire costs of the current proceedings in front of FIFA.

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. Consequently and taking into account that the total amount in dispute in the present matter is above CHF 200,001, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

23. Considering the particular circumstances of the present matter, bearing in mind that the Respondent did not reply to the claim of the Claimant, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000 and concluded that said amount has to be paid by the Respondent in order to cover the costs of the present proceedings.

24. Consequently, the Respondent has to pay the amount of CHF 25,000 in order to cover the costs of the present proceedings.

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 the present decision, the total amount of USD 300,000, plus 5% interest p.a. as follows:

a) 5% p.a. over the amount of USD 250,000 from 9 July 2016 until the date of effective payment;

b) 5% p.a. over the amount of USD 50,000 from 2 June 2017 until the date of effective payment.

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

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

5. The final costs of the proceedings in the amount of CHF 25,000 are to be paid by the Respondent, Club C, within 30 days as from the date of notification of the present decision, as follows:

5.1. The amount of CHF 20,006 has to be paid 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

5.2. The amount of CHF 4,994 has to be paid directly to the Claimant, Club A.

6. The Claimant, Club A, is directed to inform the Respondent, Club C, immediately and directly of the account number to which the remittances under points 2. and 5.2. above are to be made and to notify 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

For the Single Judge of the

Players’ Status Committee

Omar Ongaro

Football Regulatory Director

Encl. CAS Directives