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

• Data decisione: 6 ottobre 2020 • Stagione sportiva: 2020/2021

F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2020-2021) – fifa.com – atto non ufficiale – Decision 6 October 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 6 October 2020,

regarding a dispute concerning the transfer of the player Emmanuel Okyere Boateng

BY:

Geoff Thompson (England), Single Judge of the PSC

CLAIMANT:

CHARITY STARS FC, Ghana

Represented by Mr. Ignacio Segarra

RESPONDENT:

MOREIRENSE FC, Portugal

I. FACTS OF THE CASE

1. On 30 June 2015, the Ghanaian club, Charity Stars (hereinafter: the Claimant) and the Portuguese club, Moreirense FC (hereinafter: the Respondent) concluded an agreement (hereinafter: the primary agreement) for the definitive transfer of the player Emmanuel Okyere Boateng (hereinafter: player) from the Claimant to the Respondent, for the amount of EUR 105,000.

2. In addition, said primary agreement stipulated the following:

“(E) In the event that the player registration is transferred to another CLUB by Moreirense for a transfer fee in excess of the amount of the transfer fee here detailed, Moreirense will pay Charity Stars an amount equal to 30 % of any such excess net sum (Net sum is defined as any amount above and beyond the value of transfer fee outlined in clause 1.3.”

3. On 10 August 2017, the parties concluded an annex lowering the sell-on 25% with the following content:

“1. Charity agrees that instead of receiving 30% of an amount equal of any such excess net sum, above and beyond the value of 105.000,00€, in case of a future transfer of the player Emmanuel Boateng, and in order to permit that transfer, agrees to receive 25%.

2. In case of transfer to another club of the Player registration rights (Emmanuel Boateng), Moreirense shall pay to Charity an amount equal to 25% of any such excess net sum, above and beyond the value of 105.000,00€. “

4. On 14 August 2017, the Respondent and the Spanish club, Levante, concluded an agreement (hereinafter: the second agreement) for the definitive transfer of the player from the Respondent to the Spanish club, including following conditions:

“CLAUSE 2

1. In consideration of the transfer of the Player's registration to LEVANTE from MOREIRENSE, LEVANTE agrees to pay to MOREIRENSE Eur. 2.900.000 (Two millions, nine hundred euros) (…)

CLAUSE 3

In addition, in the event that the Player is transferred from LEVANTE - under a loan agreement and/or a permanent transfer agreement -, MOREIRENSE shall receive 15% (fifteen Percent) of any transfer fee received by LEVANTE over and above the amounts already paid by LEVANTE under the previous clause –

The Contingent Fee.

2. This contingent fee shall be paid to MOREIRENSE, within 5 (five) business days of the receipt of the transfer fee by LEVANTE.(...)”

5. In this respect, the Claimant acknowledged that it received from Respondent the amount of EUR 611,000 as a sell-on from the aforementioned contract.

6. On 11 February 2019, according to information contained in the Transfer Matching System (TMS), Levante and the Chinese club, Dalian, concluded an agreement for the transfer of the player from the Spanish club to the Chinese club, for the amount of EUR 5,000,000 (hereinafter: the third agreement).

7. On 14 May 2020, Levante informed the Claimant via email that it paid the amount of EUR 1,200,000 to the Respondent as sell on for the third agreement.

8. On 3 April 2020, the Claimant sent an email to the Respondent, indicating the following:

“in line with the established jurisprudence (…), the total transfer fee your club received from Levante UD, that must be considered as basis to calculate the 25% sell-on fee to be paid (…), is not only the fixed transfer fee received from Levante UD (that it already considered), but it also includes any notional transfer fee Levante UD subsequently paid to your club such as bonuses or a sell-on fee”.

9. On 10 April 2020, the Claimant sent an email to the Respondent, indicating the following: “Charity Stars FC hereby formally puts your club in default for not complying with the obligation to pay the entirety of the amounts due to it for the transfer of the player Emmanuel Boateng to your club in June 2015 according to the transfer agreement attached in our previous correspondence. In line with Article 12bis, (…) hereby grants your club a deadline of 10 days to finally comply with the aforementioned obligation.”

10. On 13 May 2020 the Claimant lodged a claim against the Respondent in connection with the sell-on fee agreed.

11. In particular, the Claimant argued that the further payment received by the Respondent due to the subsequent transfer of the player from Levante to Dalian has to be considered as part of the transfer fee of the transfer from the Respondent to Levante.

12. According to the Respondent, Dalian paid the amount of EUR 11,000,000 to Levante, allegedly in accordance with the third agreement. In this regard, the Claimant argued that the actual amount must have been that high, since otherwise the numbers would not add up.

13. In view of the above, the Claimant requested the following amounts:

Principal request:

EUR 387.750 as outstanding amount of the variable transfer fee due by the Respondent to the Claimant under the sell-on clause, plus interest of 5 % p.a. as of the due dates.

In particular, the Claimant calculated said amount as follows:

“1) The Claimant transfers the Player to the Respondent for EUR 105,000 plus 25% of the net gain of the Respondent in the subsequent transfer of the Player;

2) For the subsequent transfer of the Player to Levante, the Respondent receives EUR 4.100.000 as total transfer fee (EUR 2.900.000 fixed transfer fee plus EUR 1.200.000 variable transfer fee);

3) The net gain realized by the Respondent for the subsequent transfer of the Player to Levante is EUR 4.100.000 minus EUR 105,000 already paid, which amounts to EUR 3.995.000;

4) The Claimant is entitled, under the Sell-on Clause, to a total amount of EUR 3.995.000* 0,25= EUR 998.750.

Consequently, having the Respondent already paid to the Claimant EUR 611.000 under the Sell-on Clause, the outstanding amount is EUR 387.750.” Subordinate request:

EUR 166.500 as outstanding amount of the variable transfer fee due by the Respondent to the Claimant under the Sell-on Clause, plus interest of 5 % p.a. as of the due dates;

In particular, the Claimant calculated said amount as follows:

“1) The Claimant transfers the Player to the Respondent for EUR 105,000 plus 25% of the net gain of the Respondent in the subsequent transfer of the Player

2) For the subsequent transfer of the Player to Levante, the Respondent receives EUR 3.215.000 as total transfer fee (EUR 2.900.000 fixed transfer fee plus EUR 315.000 variable transfer fee);

3) The net gain realized by the Respondent for the subsequent transfer of the Player is EUR 3.215.000 minus EUR 105,000 already paid, which amounts to EUR 3.110.000;

4) The Claimant is entitled, under the Sell-on Clause, to a total amount of EUR 3.110.000* 0,25= EUR 777.50024.

Consequently, having the Respondent already paid to the Claimant EUR 611.000 under the Sell-on Clause, the outstanding amount is EUR 166.500.”

14. The Respondent rejected the claim of the Claimant, which it considered “illegal and materially not founded”.

15. The Respondent considered that the claim was time barred since it was notified of the claim on 9 July 2020, whereby the event giving rise to the dispute was the conclusion of the second agreement on 14 August 2017.

16. In particular, the Respondent explained that “the real intention of the parties was that the clause in dispute doesn't apply in the event that the player registration is subsequent transferred from the third club to another fourth club. “

17. In other words, the Claimant argued that the Claimant would only have the right to be paid with an additional amount in the event of a subsequent "sale" of the player by the Respondent to a third club, namely Levante.

18. The Claimant considered that “both parties acknowledging that the retribution fee due to the Claimant would terminate with the Respondent's payment of the said 25% of the amount equal to the excess net sum.”

19. In this context, the Respondent underlined that it paid to the Claimant the amount of EUR 611,994.50, calculated as follows:

Transfer to Levante

Solidarity mechanism

Intermediary fees

Amount of the primary agreement

Total:

+ 2,900,000

- 5%

- 200,000

- 105,000

611,994.50

20. As a result, the Respondent deemed that the subsequent transfer from Dalian to Levante is irrelevant to the matter.

II. CONSIDERATIONS OF THE PLAYERS' STATUS COMMITTEE

1. First of all, the Single Judge of the Players’ Status Committee (hereinafter: Single Judge) analysed whether he was competent to deal with the present matter. In this respect, he took note that the present matter was submitted to FIFA on 13 May 2020. Taking into account the wording of art. 21 of the November 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 referred to art. 3 paras 2 and 3 of the Procedural Rules and confirmed that in accordance with art. 23 paras 1 and 4 in conjunction with art. 22 lit. f of the Regulations on the Status and Transfer of Players (edition October 2020) he is competent to deal with the matter at stake, which concerns a contractual dispute between clubs affiliated to different associations.

3. Furthermore, the Single Judge analysed which regulations should be applicable as to the substance of the matter. In this respect, he confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition October 2020), and considering that the present claim was lodged on 13 May 2020, the March 2020 edition of said regulations (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation on file. 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. First of all, the Single Judge noted that the Respondent argued that the claim was time barred. In this regard, the Single Judge observed that the claim was lodged on 13 May 2020. In accordance with the Claimant’s claim maintaining that an additional fee was triggered by the subsequent transfer of the player from Levante to Dalian, the Single Judge concluded that the transfer of 11 February 2019 was the event giving rise to the dispute and that the claim therefore is not time barred.

6. Subsequently, the Single Judge acknowledged that the Claimant and the Respondent signed a transfer agreement on 30 June 2015, over the transfer of the player from the Claimant to the Respondent, including a so called sell-on fee.

7. Moreover, the Single Judge noted that at a later stage, namely on 10 August 2017, the relevant clause was amended by the parties.

8. Futhermore, the Single judge took noted that the Claimant lodged a claim against the Respondent in front of FIFA, maintaining that the Respondent owed it the total amount of EUR 387,750 or alternatively EUR 166,500, corresponding to the outstanding part of its sell-on fee, taking into account the payment of EUR 611,000, already remitted by the Respondent in this regard.

9. Subsequently, the Single Judge took into account that the Respondent rejected the claim and maintained that the agreed sell-on fee would not apply to the subsequent transfer of the player from Levante to Dalian.

10. Subsequently, the Single Judge turned his attention to the substance of the matter, and recapitulated the content of the relevant clauses agreed between them on 30 June 2015 (A) and 10 August 2017 (B):

(A)

(B)

11. On account of the above, the Single Judge had to assess if the sell-on clause agreed between the Claimant and the Respondent would include every future payment due to the Respondent or if said sell-on was limited to one subsequent transfer.

12. Taking into account the exact wording of the both clauses, the Single Judge noted that clause (A) clearly mentions the involvement of the Respondent (“In the event that the player registration is transferred to another CLUB by Moreirense for a transfer…”).

13. Moreover, the Single Judge acknowledged that clause (B) refers to “a future transfer of the player…”, and not to every future transfer of the player. In conclusion, the Single Judge pointed out that it appears that the parties wanted to agree upon a sell-on clause including one further transfer from the Respondent, and not every future transfer of the player.

14. In this regard, the Single Judge decided not take into account any further payments received by the Respondent in connection with the second sell-on clause agreed upon between the Respondent and Levante.

15. Consequently, the Single Judge decided to reject the argumentation put forward by the Claimant and concluded his deliberations by rejecting the claim.

16. Finally, in this respect, the Judge referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 that, given the current circumstances, for any claim lodged prior to 10 June 2020 which has yet to be decided, the maximum amount of the procedural costs shall be equivalent to any advance of costs paid. Thus, considering that no advance of costs were paid, the Single Judge established that the decision is rendered free of costs.

III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Charity Stars FC, is rejected.

2. The decision is rendered free of costs.

For the Players' Status Committee:

Emilio García Silvero

Chief Legal & Compliance Officer

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) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

CONTACT INFORMATION:

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