F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2019-2020) – fifa.com – atto non ufficiale – Decision 14 February 2020

Decision of the Single Judge

of the Players’ Status Committee

passed on 14 February 2020,

by

Roy Vermeer (the Netherlands)

Single Judge of the Players’ Status Committee,

on the matter between the club

Union Kalba FC, United Arab Emirates,

represented by Mr Eduardo Carlezzo

as Claimant

and the club

Club Tigres de la UANL, Mexico

as Respondent

regarding a contractual dispute arisen between the parties

and relating to the player Alan Santos da Silva

I. Facts of the case

1. On 25 June 2018, the parties signed a loan agreement over the temporary transfer of the player, Alan Santos da Silva (hereinafter: the player), from the Mexican club, Club Tigres de la UANL (hereinafter: the Respondent), to the Emirati club, Union Kalba FC (hereinafter: the Claimant) for the period of 25 June 2018 until 30 June 2019.

2. The loan agreement, inter alia, stipulated the following:

“1. Loan – [the Respondent] has an employment contract with [the player] and agrees to loan the services of [the player] to the [Claimant] during the Loan Period (as defined below) and for the amount established below (Loan Fee), subject to the terms and conditions of this Loan Agreement.

The Club accomplished to pay TIGRES the amount of USD 200,000 as loan fee according to the next dates.

i. One payment of USD 100,000.00 must be paid at the sign of the loan contract.

ii. The second payment of USD 100,000.00 must be paid in January 2019.

[…]

5. Conditions Precedent. This agreement is conditioned upon and subject to the following: (i) a formal agreement being reached between the [Claimant] and the Player as to the terms upon which the Player is to provide his services to the [Claimant] (“Player-Club Agreement”), (ii) [the Respondent’s] receipt of this Loan Agreement signed by all parties and (iii) the first payment established in clause 1. Further, in connection with the Loan Period, the [Claimant] shall not make any claim for compensation pursuant to the FIFA Regulations on the Status and Transfer of Players (e.g. (…) Training Compensation (…) and/or (…) Solidarity Mechanism).

[…]

6. Early Termination. The Club agrees that Tigres will have the right to terminate in advance the Loan Agreement on December 31, 2018 by written notice to be sent from September 1 to December 15, 2018. In such event, the Club shall immediately release the Player’s registration rights to TIGRES and do all things necessary to ensure that the Player’s international clearance is promptly transferred to TIGRES. Also, in this case if Tigres decides to cancel in advance the loan agreement the Club will not have the obligation to pay the second payment established as Loan Fee.”

3. On 1 July 2018, the Claimant concluded an employment contract with the player, valid as from 15 July 2018 until 14 July 2019, according to which the Claimant had to pay to the player a sign-on fee in the amount of USD 350,000 and a monthly salary in the amount of USD 45,833.

4. According to the information available in the FIFA Transfer Matching System (hereinafter: TMS), the Claimant entered a transfer instruction (hereinafter; the first transfer instruction) for the loan of the player and indicating the Mexican club Tiburones Rojos de Veracruz (hereinafter: Veracruz) as the former club of the player. In particular, the Claimant uploaded the above loan agreement, as well as the contract it had signed with player for the duration of the loan. The Claimant cancelled the first transfer instruction on 13 September 2018.

5. On 13 September 2018, the Claimant entered another transfer instruction (hereinafter: the second transfer instruction) in TMS for the loan of the player and this time indicated the Respondent as the former club. In particular, the Claimant uploaded the above loan agreement, as well as the contract it had signed with player for the duration of the loan. In this respect, the Respondent did not enter any counter instruction, and the transfer instruction remained under the “awaiting counter instruction status”.

6. On 24 January 2019, the Claimant lodged a claim in front of FIFA requesting the following:

“1. Confirm the breach of the Loan Agreement committed by the Respondent without just cause and consider it terminated on 26 November 2018;

2. Condemn the Respondent to reimburse the Claimant in the total amount of USD 747,752 […].

3. Condemn the Respondent to compensate the sportive damages suffered by the Claimant in the amount of USD 250,000 […].

4. Condemn the Respondent to bear with all the costs of the present procedure and reimburse the advance of costs paid by the Claimant in the amount of CHF 5,000.”

7. The Claimant later amended its claim and acknowledged having received USD 100,000 from the Respondent, leaving the other requests unaltered.

8. The Claimant maintained that, after having concluded the loan agreement, it proceeded to fulfil the conditions precedent enshrined therein, namely: (i) sign an employment contract with the player on 1 July 2018 and (ii) pay the first instalment of USD 100,000.

9. The Claimant recalled that, after having inserted the necessary instructions on the TMS, the Respondent failed to enter its counter instructions on it in order to complete the transfer.

10. The Claimant argued that the Respondent’s behaviour caused financial and sporting damages. Namely:

- USD 100,000 paid as first instalment without ultimately being able to ultimate the transfer (at a later stage taken out)

- USD 90,000 paid as player’s agent commission;

- USD 557,752 paid in total to the player, consisting of: (i) USD 350,000 as down payment; (ii) USD 121,919 as salaries from July to October 2018; (iii) USD 45,833 to amicably settle with the player on 25 November 2018;

- USD 250,000 as sportive damages.

11. The Respondent maintained that, prior to the Claimant performing the first payment of USD 100,000, it had informed the intermediary, a certain Mr Bittencourt, that the Federación Mexicana de Fútbol Asociación, A.C. (hereinafter: the FMF) had informed it that it was not possible to register the loan agreement since the Mexican club, Tiburones Fojos de Veracruz, was his last team and thus the player had to be registered as a free agent. In this respect, the Respondent explained that the player had been transferred to the said club and at the end of April 2018 “terminó su vinculo con Tiburones y regresó a Brasil” (free translation: ended his bond with Tiburones and returned to Brazil).

12. Moreover, the Respondent pointed out that it exchanged various correspondences with the Claimant in order to try and fix the issue by proposing to draft a new agreement whereby the player was indicated as free agent and the Claimant confirmed – in its submission – that it counter-proposed, as an alternative, “two great options in order to solve the matter amicably: 1st the signature of a new employment agreement with the Player (to adjust the duration of the contract, considering [the Claimant] was prevented from counting with the player in the first months) and the consequent termination of the loan agreement; or 2nd [the Respondent] pays to [the Claimant] USD 200,000 and ask the player back in December”.

13. Lastly, the Respondent underlined that it had proceeded to reimburse the Claimant the amount of USD 100,000 already on 19 September 2018 (while the registration period closed on 1 October 2018) and, therefore, on that date it was clear that the loan agreement was not going to be executed any more.

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 whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 24 January 2019. Taking into account the wording of art. 21 of the 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned 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 January 2020 edition 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 24 January 2019. In view of the foregoing, the Single Judge concluded that the June 2018 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. 4 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. The Single Judge emphasised, however, 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. In particular, the Single Judge emphasised that, in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documents or evidence generated or contained in the TMS.

5. First of all, the Single Judge acknowledged that on 25 June 2018, the parties concluded a loan agreement relating to the temporary transfer of the player from the Respondent to the Claimant with the terms as indicated in point I.2 above.

6. The Single Judge then reviewed the claim of the Claimant who requested the payment of USD 897,572 considering that the Respondent’s behaviour caused financial and sporting damages.

7. Furthermore, the Single Judge observed that, for its part, the Respondent rejected the claim and deemed that the whole issue was due to the circumstances surrounding the player’s registration.

8. At this stage, taking into account the positions of the parties, the Single Judge first analysed the facts surrounding the player’s attempted registration with the Claimant.

9. First, the Single Judge thoroughly reviewed all the information at his disposal, including the documentation available in TMS.

10. In this respect, the Single Judge noted that the Claimant and the Respondent signed a loan agreement on 25 June 2018 for the temporary transfer of the player on 25 June 2018 and that the Claimant and the player signed an employment contract for the duration of the loan on 1 July 2018. The Single Judge duly noted that the Claimant paid the first instalment of the loan fee to the Respondent of an amount of USD 100,000 and that it started with the payment of the player’s remuneration foreseen in the employment contract.

11. Then, the Single Judge noted that the Claimant cancelled the first transfer instruction it had entered for the loan of the player where it indicated Veracruz as the player’s former club, before entering the second transfer instruction for the loan of the player, this time indicating the Respondent as the former club. In particular, the Single Judge remarked that in both transfer instructions, the Claimant uploaded the loan agreement it signed with the Respondent.

12. The Single Judge however observed that that the FMF had declared that the player had only been registered with Veracruz in Mexico, and that Veracruz indicated that the contract with the player expired on 30 April 2018.

13. In view of the aforementioned contradictory information, the Single Judge determined that it could not be established with certainty that the player was under contract with a Mexican club, if any, when the Claimant concluded the loan agreement with the Respondent, despite the Respondent stipulating that it had the player under contract within the terms of the loan agreement.

14. Nevertheless, the Single Judge was of the opinion that by signing the loan agreement, the Claimant acknowledged that the Respondent was the holder of the player’s federative rights. The Single Judge emphasised that the Respondent had created a legitimate expectation for the Claimant, and that the Claimant could in good faith only expect that the Respondent would fulfil its obligations regarding the loan of the player, and more particularly those set out in art. 4 and 5 of Annexe 3 of the Regulations according to which “Clubs are also obliged to upload at least the mandatory documents to support the information that has been entered in TMS (…) and provide confirmation of the relevant instruction”, and “Equally, where matching exceptions arise, clubs are required to resolve them with the participation of the other club concerned.” What is more, the Single Judge deemed necessary to emphasise that according to art. 3 par. 1 of Annexe 3 of the Regulations, TMS users shall act in good faith.

15. Then, the Single Judge noted that after having entered and cancelled the first transfer instruction between 9 and 13 September 2019, the Claimant entered the second transfer instruction on 13 September 2018, that is to say more than two months after having signed the loan agreement and the contract with the player.

16. The Single Judge noted however that the Respondent never entered any counter instruction in TMS, thus failing to comply with its obligations. In fact, the Single Judge deemed that the Respondent should have either (1) confirm the counter instruction and/or enter any matching exceptions should it had the player under contract or (2) request for the cancellation of the transfer instruction should it had not a valid contract with the player.

17. In view of the above, and in particular of the fact that the Respondent acted as the current club of the player but failed to comply with its obligation to act on the second instruction which had been created by the Claimant on the result of the expectations that the Respondent had itself created, the Single Judge concluded that the Respondent had breached the provisions set out in art. 3 par. 1 and in art. 4 and 5 of Annexe 3 of the Regulations.

18. As such, the Single Judge deemed that the Respondent had to bear in principle responsibility for the expenses occurred and/or any damages suffered by the Claimant as a result of its aforementioned failures.

19. The Single Judge emphasised that the Respondent failed to comply with its obligations only after the relevant transfer instruction at the basis of the claim was duly entered on TMS, i.e. as from 13 September 2018.

20. Notwithstanding the above, the Single Judge was keen to point out that the Claimant had waited more than two months for entering the relevant transfer instruction in TMS, and decided in its own will to start paying the player prior to having received the counter instruction from the Respondent and the player’s International Transfer Certificate. Thus, the Single Judge deemed that the Claimant failed to perform its due diligence.

21. As such, the Single Judge considered that the Respondent could not be held responsible for any amount that the Claimant would have processed to the player in its own will between 25 June 2018 and 13 September 2018.

22. What is more, the Single Judge acknowledged that the parties discussed the administrative issues regarding the loan of the player but could not reach a satisfactory agreement.

23. In continuation, the Single Judge noted that the Respondent reimbursed the first instalment of the loan agreement, and that on 25 November 2018 the Claimant mutually terminated the contract with the player.

24. The Single Judge wished to once again state that it could not be established whether the player was indeed a free agent or contracted to the Respondent and/or Veracruz and/or any other club.

25. As such, the Single Judge deemed that it could not determine if the Claimant had indeed suffered any loss and/or damages due to the non-registration of the player and the cancellation of the contract it signed with the player, besides any expenses the Claimant occurred between 13 September 2018, i.e. the creation of the second transfer instruction, and 25 November 2018, i.e. when the Claimant and the player mutually terminated their contract. In particular, the Single Judge underlined that there may be a possibility that the player was in fact a free agent prior to the beginning of the relevant transfer window and that the player could potentially had been registered as such by the Claimant beyond the closing of the transfer window in the United Arab Emirates.

26. In this regard, the Single Judge determined that after the request in TMS, i.e. 13 September 2018, the Claimant made 3 payments to the player in the amount of USD 45,833 each.

27. Therefore, the Single Judge concluded that the Respondent shall be liable to pay to the Claimant the amount of USD 137,499.

28. Furthermore, considering the Claimant’s claim for interest and also taking into account the Players’ Status Committee’s longstanding jurisprudence, the Single Judge ruled that the Respondent must pay 5% interest p.a. until the date of effective payment as follows:

a) 5% p.a. as from 30 October 2018 on the amount of USD 45,833;

b) 5% p.a. as from 5 November 2018 on the amount of USD 45,833;

c) 5% p.a. as from 25 November 2018 on the amount of USD 45,833.

29. Taking into account all the above considerations, the Single Judge decided to reject any further claim of the Claimant.

30. 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).

31. In respect of the above, and taking into account that the claim of the Claimant had been partially accepted, the Single Judge concluded that both the Claimant and the Respondent had to bear a part of the costs of the current proceedings before FIFA.

32. 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 USD 897,572, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000.

33. In conclusion, the Single Judge determined the costs of the current proceedings to the amount of CHF 25,000. Moreover, 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 8,000 has to be paid by the Claimant and the amount of CHF 15,000 by the Respondent to cover the costs of the present proceedings.

34. Taking into account the consideration under number II.2 above, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with his decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

35. In this regard, the Single Judge pointed out that, against clubs, the consequence of the failure to pay the relevant amounts in due time shall consist of a ban from registering any new players, either nationally or internationally, up until the due amounts are paid and for the maximum duration of three entire and consecutive registration periods.

36. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amounts due to the player within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the club, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.

37. Finally, the Single Judge recalled that the above-mentioned ban will be lifted immediately and prior to its complete serving upon payment of the due amounts, in accordance with art. 24bis par. 3 of the Regulations.

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

1. The claim of the Claimant, Union Kalba FC, is partially accepted.

2. The Respondent, Club Tigres de La UANL, has to pay to the Claimant the amount of USD 137,499, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as from 30 October 2018 on the amount of USD 45,833;

b. 5% p.a. as from 5 November 2018 on the amount of USD 45,833;

c. 5% p.a. as from 25 November 2018 on the amount of USD 45,833.

3. Any further claim lodged by the Claimant is rejected.

4. The Claimant is directed to inform the Respondent, immediately and directly, preferably to the e-mail address as indicated on the cover letter of the present decision, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

5. The Respondent shall provide evidence of payment of the due amount in accordance with point 2. above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest in accordance with point 2. above, is not paid by the Respondent within 45 days as from the notification by the Claimant of the relevant bank details to the Respondent, the Respondent shall be banned from registering any new players, either nationally or internationally, up until the due amount is paid and for the maximum duration of three entire and consecutive registration periods (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

7. The ban mentioned in point 6. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

8. In the event that the aforementioned sum, plus interest, is still not paid by the end of the ban of three entire and consecutive registration periods, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

9. The final costs of the proceedings in the amount of CHF 23,000 are to be paid by both parties as follows:

9.1. The amount of CHF 8,000 has to be paid by the Claimant. Considering that the latter already paid an advance of costs in the amount of CHF 5,000 at the start of the present proceedings, the Claimant has to pay the remaining amount of CHF 3,000.

9.2. The amount of CHF 15,000 has to be paid by the Respondent.

9.3. The aforementioned amounts have to be paid directly to FIFA to the following bank account with reference to case nr. 19-00212/ssp-gra:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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

Emilio García Silvero

Chief Legal & Compliance Officer