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 23 March 2021

Decision of the

Single Judge of the PSC

passed on 23 March 2021

regarding a dispute concerning the transfer of the player Giovani Lo Celso

COMPOSITION:

Vitus Derungs (Switzerland), Single Judge of the PSC

CLAIMANT:

Paris Saint-Germain, France

RESPONDENT:

Real Betis Balompié, Spain

I. Facts

1. On 31 August 2018, the parties concluded an agreement for the temporary transfer of the player from the Claimant to the Respondent, until 30 June 2019.

2. The loan agreement included the following permanent transfer option:

“5.2 Conditions of the Permanent Transfer:

By the exercise of the Call Option, BETIS SEVILLE and PARIS SAINT-GERMAIN agree on the automatic Permanent Transfer of the Player on July 1st, 2019, under the following conditions.

5.2.1.Transfer Fee:

5.2.1.1 Subject to the exercise of the Call Option and in consideration for the Permanent Transfer, BETIS SEVILLE undertakes to pay PARIS SAINT-GERMAIN a fee fixed by mutual agreement of the Parties in the amount of 22,528,384,28 Euros (twenty-two million five hundred twenty-eight thousand three hundred eighty-four euros and twenty-eight cents), VAT excluded (the “Transfer Fee”), before deduction of the Solidarity Contribution referred to in Article 21 and Annex 5 of FIFA Regulations (the “Transfer Solidarity Contribution”).

3. Clause 5.2.2 of the contract stipulated the following sell-on clause:

“5.2.2 Sell-On Fee:

5.2.2.1 If, following the exercise of the Call Option, BETIS SEVILLE permanently transfers the registration of the Player to another football club, including the case being PARIS SAINT-GERMAIN (the “New Transfer”), BETIS SEVILLE will pay PARIS SAINT-GERMAIN 20% (twenty percent) of the net profit made by BETIS SEVILLE on the New Transfer taking into account the total transfer fee of it (the “Total New Transfer Fee”)

5.2.2.2 For the purposes of this Agreement, ‘net profit’ means the difference between the Total New Transfer Fee, VAT excluded, after deduction of solidarity contribution referred to in the FIFA Regulations and the Transfer Fee, VAT excluded, after deduction of solidarity contribution referred to in the FIFA Regulations(the “Sell-On Fee”). Payment of any sum due to PARIS SAINT-GERMAIN under this Article 5.2.2 shall be made within seven (7) days of the later of the following dates: (i) receipt of funds by BETIS SEVILLE and –(ii) date on which a valid invoice from PARIS SAINT-GERMAIN is received by BETIS SEVILLE.

5.2.2.3 For the purposes of the calculation of the Sell-On Fee, the Total New Transfer Fee shall be deemed to comprise any fixed compensation and any bonus / variable compensation and any variable fee received by BETIS SEVILLE in the context of the New Transfer, VAT excluded, after deduction of the solidarity contribution referred to in the FIFA Regulations.

Also, the Transfer Fee shall be considered after deduction of the solidarity contribution referred to in the FIFA Regulations. In the event a player exchange is contemplated as a counterpart to the New Transfer (i.e. the future transfer from BETIS SEVILLE to a third club),BETIS SEVILLE shall notify PARIS SAINT-GERMAIN in order to obtain PARIS SAINT-GERMAIN’s consent regarding such player exchange.

After such notification, the Parties agree to enter into good faith negotiations in order to agree a total cash value for the New Transfer taking into account the value of the player(s) exchanged in order to calculate the Total New Transfer Fee.

If the Parties do not reach an agreement on the Total New Transfer Fee taking into account the value of the player(s) exchanged, PARIS SAINT-GERMAIN shall be entitled to withhold its consent to the player exchange and therefore BETIS SEVILLE shall not accept any player exchange as either full or part consideration for the New Transfer.”

According to TMS, on 6 August 2019, the transfer of the player from the Claimant to the Respondent was transformed into a permanent one. The entered amount of the transfer is EUR 21,496,584.28, with a sell-on fee of 20%.

4. On 8 August 2019, Real Betis and Tottenham (“Tottenham”) entered into an agreement (the Betis-Tottenham agreement), for the temporary transfer of the player to the latter.

5. Art. 2 of the aforementioned agreement stipulated the following:

“In consideration of the temporary transfer of the Player's registration THFC agrees to pay Real Betis a loan fee of €16,000,000 (sixteen million Euros), payable as follows

i) €12,000,000 within 7 days of the THFC being in receipt of the Players' International Transfer Certificate (“ITC") and

ii) €4,000,000 on 3rd January 2020”

[According to TMS, the stated value is EUR 15,600,000 (after deducting the solidarity contribution]

1. Art. 17 of said agreement stipulated the following:

“17. In consideration of the permanent transfer of the Player's registration from Real Betis to THFC

a) if the Option is exercised on or before 31st January 2020, THFC agrees to pay to Real Betis a guaranteed fixed sum of €32,000,000 (…) as follows

i. €9,000,000 (nine million Euros) on 1st August 2020;

ii. €9,000,000 (nine million Euros) on 1st August 2021;

iii. €9,000,000 (nine million Euros) on 1st August 2022; and

iv. €5,000,000 (five million Euros) on 1st August 2023.

(…)

2. On 8 August 2019, the Claimant requested to the Respondent to be provided with a copy of the Betis-Tottenham agreement.

3. According to the Claimant, on 16 August 2019, Betis only sent him a redacted version of the contract.

4. On 29 August 2019, the Claimant sent an email to the Respondent, expressing its surprise about why the Betis-Tottenham agreement was structured as a loan with a buyout option.

5. On 10 September 2019, Tottenham apparently informed the Claimant of the following:

“the terms of deal that we [i.e. Tottenham] agreed with Real Betis, were the only terms that they [i.e. Real Betis] would accept in order for us to complete the transfer. As you know, we have the option to make the loan a permanent transfer, which was of vital importance to us.”

6. According to the information contained in the Transfer Matching System (TMS) [Transfer reference: 287743 / 287544], on 1 July 2020, the transfer of the player from the Respondent to Tottenham was transformed into a permanent one. The entered amount of the transfer is EUR 31,200,000.

7. In this respect, the player concluded an employment contract with Tottenham on 1 July 2020.

8. On 18 June 2020 [the Claim was substantially amended on 3 December 2020] , the Claimant lodged a claim before FIFA against the Respondent, arguing that the sell-on fee must be calculated on the basis of the total amount received by the Respondent from Tottentham.

9. More specifically, the Claimant requested, inter alia, the following:

(2) Real Betis Balompié SAD is obliged to pay to Paris Saint-Germain Football SASP a sell-on fee in the amount of EUR 5,082,907.14.

(3) Real Betis Balompié SAD is ordered to pay to Paris Saint-Germain Football SASP the outstanding portion of the sell-on fee, in the amount of EUR 2,647,178.04.

(4) Real Betis Balompié SAD shall pay interest on the outstanding amounts at a rate of 5% per annum until the date of full payment

10. In this respect, the Claimant offered its calculation of the sell-on fee on the basis of the following considerations:

“The transfer fee provided for in the PSG/Betis Agreement, after deduction of the solidarity contribution, amounts to EUR 21,496,584.28” [i.e. 22,528,384.28 minus solidarity contribution]

(…)

the total transfer fee provided for in the Betis/Tottenham Agreement, after deduction of the solidarity contribution, amounts to EUR 46,911,120.”

11. Thus, following clause 5.2.2. of the PSG-Betis agreement, the Claimant offered the following calculation:

EUR 46,911,120 – EUR 21,496,584.28 × 20% = EUR 5,082,907.14

12. In this respect, the Claimant argued that, as of this date, the first three instalments are already due, as follows:

(i) EUR 12M to be paid on 15/08/2019 (25% of the total transfer fee);

(ii) EUR 4M to be paid on 03/01/2020 (8.33% of the total transfer fee);

(iii) EUR 9M to be paid on 01/08/2020 (18.75% of the total transfer fee).

13. Hence, the Claimant made its request as follows:

EUR 5,082,907.14 × 52.08% (i.e. 25% + 8.33% + 18.75%) = EUR 2,647,178.04.

14. As to the payment of interest, the Claimant requested it to be paid as from 20 November 2020, when “PSG sent an invoice to Real Betis”.

15. In this respect, the Claimant argued that the Respondent sought to prevent the conditions for the sell-on fee from being properly fulfilled by refusing to transfer the Player to Tottenham permanently, and instead insisted on structuring the transfer as a very short-term loan with an option right.

16. In the opinion of the Claimant, the Respondent’s “deliberate efforts” to avoid the relevant condition being fulfilled is evidenced by the following facts:

(i)Tottenham wished to transfer the Player on a permanent basis but Real Betis stipulated that the permanent transfer could only take place if it was presented as a loan with an option right;

(ii)The amount of EUR 16M was both completely excessive and disproportionate for a supposed loan fee; and

(iii)Real Betis’ behaviour was consistent with wrongdoing.

17. The Claimant considered that the reason why Betis had opted for a loan with an option right for Tottenham was specifically to reduce the amount of the Sell-on Fee to be paid to PSG, and quoted a series of news reports in support of its position, which are available in the following hyperlinks:

- Giovani Lo Celso: Why the Argentine Midfielder Is the Perfect Christian Eriksen Replacement | 90min

- Why Giovani Lo Celso loan deal to Tottenham on deadline day had something to do with PSG

- Giovani Lo Celso makes £55m switch to Spurs from Real Betis

18. In its reply to the claim, the Respondent rejected the claim of the Claimant.

19. In this respect, the Respondent argued that it completely complied with the terms of art. 5.2.2. of the Betis-PSG Agreement.

20. In the opinion of the Respondent, under no circumstance, Article 5.2.2.2 be interpreted as the PSG claims, since the terms of said clause are clear and leave no room for interpretation other than its literal wording.

21. The Respondent explained that it did not act in bad faith, as it preferred to transfer the player to Tottenham on a temporary basis with a buyout option on the grounds of a business decision.

22. The Respondent stated that said transfer was fully compliant with all the applicable Regulations.

23. The Respondent argued that the evidence provided by the Claimant is of a speculative nature.

II. Considerations of the Single Judge of the PSC

1. First of all, the Single Judge of the PSC (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the January 2021 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 of the PSC referred to art. 3 par. 1 of the Procedural Rules and emphasised that, in accordance with art. 24 par. 1 in combination with art. 22 lit. e) of the Regulations on the Status and Transfer of Players, the Single Judge of the PSC is competent to deal with disputes between clubs affiliated to different associations.

3. In continuation, the Single Judge of the PSC analysed which edition of the Regulations of the Status and Transfer of Players should be applicable to the present matter. In this respect, the Single Judge of the PSC confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering the date when the claim was lodged, the June 2020 edition of the aforementioned regulations (hereinafter: the Regulations) is applicable to the matter at hand.

4. With the above having been established, the Single Judge of the PSC entered into the substance of the matter. In doing so, he started to acknowledge the facts of the case as well as the documents contained in the file. However, the Single Judge of the PSC emphasized that in the following considerations it will refer only to facts, arguments and documentary evidence which he considered pertinent for the assessment of the matter at hand.

5. In this respect, the Single Judge noted that, on 31 August 2018, the parties concluded an agreement for the transfer of the player from the Claimant to the Respondent, until 30 June 2019. The Chamber noted that the parties stipulated a sell-on fee in its clause 5.2.2.

6. Subsequently, the Single Judge noted that, on 8 August 2019, the Respondent (Real Betis) and Tottenham (“Tottenham”) entered into an agreement (“the Betis-Tottenham agreement”), for the temporary transfer of the player to the latter.

7. Furthermore, the Single Judge observed that, on 1 July 2020, the transfer of the player from the Respondent to Tottenham was transformed into a permanent one.

8. Within this context, the Single Judge observed that the Claimant lodged a claim before FIFA, on the basis of clause 5.2.2.1 of the initial agreement concluded between the parties, arguing that a sell-on fee shall be paid by the Respondent on the basis of the total amount received by the Respondent from Tottenham.

9. Conversely, the Single Judge took note of the Respondent’s position, according to which, fundamentally, the sell-on fee is not applicable, insofar the player was transferred on loan from Betis to Tottenham, and the referred 5.2.2.1 would only be applicable in case of a permanent transfer.

10. In view of the dissent between the parties, the Single Judge considered it important to recall the contents of the aforementioned clause, which read as follows:

““5.2.2 Sell-On Fee:

5.2.2.1 If, […] BETIS SEVILLE permanently transfers the registration of the Player to another football club, including the case being PARIS SAINT-GERMAIN (the “New Transfer”), BETIS SEVILLE will pay PARIS SAINT-GERMAIN 20% (twenty percent) of the net profit made by BETIS SEVILLE on the New Transfer taking into account the total transfer fee of it (the “Total New Transfer Fee”) [underline added]

11. In relation to the aforementioned clause, the Single Judge concurred that, indeed, the sell-on fee clearly referred to permanent transfers of the player from Betis towards a third club.

12. Yet, in relation to said clause, the Single Judge recalled that, on 8 August 2019, the concerned player transferred from Betis to Tottenham, initially on a temporary basis.

13. However, the Single Judge underlined that, on 1 July 2020, the aforementioned transfer was transformed into a permanent one.

14. As a result, the Single Judge understood that the main legal issue at stake is to determine whether clause 5.2.2.1 is applicable to the transfer of the player from Betis to Tottenham, which was initially formulated as a temporary transfer, and then converted into a permanent transfer.

15. In interpreting the contract, the Single Judge first wished to note that, when assessing the form and terms of a contract, the true and common intention of the parties must be ascertained without dwelling on any inexact expressions or designations they may have used either in error or by way of disguising the true nature of the agreement.

16. Hence, when observing the sequence of events involving the transfer of the player from Betis to Tottenham, the Single Judge considered that, even though the contract initially started as a loan, the player was ultimately transferred on a permanent basis. In the view of the Judge, the transfer of the player from the Spanish club to the English club was, de facto, of a permanent nature, regardless of the fact that it started as a loan. In the opinion of the Judge, when assessing the applicability of the aforementioned sell-on fee, the de facto elements concerning the subsequent transfer of the player shall take precedence over more formalistic (de iure) elements.

17. As a result, the Single Judge understood that, regardless of its legal structuring, de facto, the player transferred from Betis to Tottenham in a manner that complies with the sell-on requirements of the PSG-Betis agreement, since it resulted in a permanent transfer. The Single Judge underline that this interpretation allows to take into account taking new circumstances into account without departing from the contractual intent.

18. In view of the above, the Single Judge established that the Respondent shall pay a sell-on fee in accordance with art. 5.2.2. of the agreement concluded with the Claimant, for all the amounts paid by Tottenham to Betis for the transfer of the player.

19. After establishing the foregoing, the Single Judge went on the specific calculation of the payable sell-on fee.

20. In doing so, the Single Judge wished to recall the different amounts that Tottenham committed to pay to Betis for the transfer of the player.

21. In particular, the Single Judge noted that, for the loan, the parties agreed upon the payment of the following amounts:

- EUR 12,000,000, payable within 7 days of the “ITC". However, after deducting the applicable solidarity contribution and in accordance with the information contained in the TMS concerning payments, the Single Judge would considered the final amount of EUR 11,800,000 for this instalments. The Single Judge observed that this amount corresponds to approx. 25% of the total transfer fee.

- EUR 4,000,000 on 3rd January 2020. However ,after deducting the applicable solidarity contribution and in accordance with the information contained in the TMS concerning payments, the Single Judge considered the final amount of EUR 3,800,000 for this instalment. The Single Judge observed that this amount corresponds to approx 8.11% of the total transfer fee.

22. Thereafter, the Single Judge noted that, for the conversion to transfer, the parties agreed upon the payment of the following amounts:

- EUR 9,000,000, due on 1 August 2020. However, after deducting the applicable solidarity contribution and in accordance with the information contained in the TMS concerning payments, the Single Judge considered the final amount of EUR 8,800,000 for this instalment. The Single Judge noted that this amount corresponds to 18.80% of the total transfer fee.

23. The Single Judge also noted that the parties agreed upon further instalments, i.e. EUR 9,000,000, due on 1st August 2021; EUR 9,000,000 due on 1 August 2022 and 5,000,000 due on 1st August 2023. However, given that said amount are not yet due at the date of this decision, the Single Judge established that it could only calculate the payable sell-on fee at this moment on the basis of the already due instalments, i.e. the instalments that are quoted in paragraphs II. 21 and II. 22 above.

24. Nevertheless, considering the previous information and without prejudice to the amounts that are currently due, the Single Judge concluded that the total amount of EUR 46,800,000 shall be used as the basis for the calculation of the sell-on fee, which corresponds to all the payments agreed between Betis and Tottenham, after adjusting the applicable solidarity contribution.

25. In this respect, the Single Judge remarked that the applicable clause established that“BETIS SEVILLE will pay PARIS SAINT-GERMAIN 20% (twenty percent) of the net profit made by BETIS SEVILLE on the New Transfer taking into account the total transfer fee of it”.

26. Taking into account the foregoing, the Single Judge observed that the transfer fee provided for in the PSG/Betis Agreement, after deduction of the solidarity contribution, amounts to EUR 21,496,584.28. Hence, considering that the net profit was defined as “the difference between the Total New Transfer Fee” and the previous transfer fee, i.e. EUR 46,800,000 - 21,496,584.28 = EUR 25.303.415.72.

27. Hence, taking into account the net profit, the Single Judge observed that the applicable total sell-on fee would amount to EUR 5,060,682.54, i.e. EUR 25,303,412.72*20%.

28. Nevertheless, and considering that, at this moment, only the three instalments payable “within 7 days of the “ITC", on 3 January 2020 and 1 August 2020 are currently due, the Single Judge established that he could only award a pro rata amount from the applicable sell-on fee for the currently due instalments. In particular, and as mentioned above, the Single Judge noted that the first instalment corresponds to 25% of the total transfer amount, whereas the instalment due on 3 January 2020 corresponds to 8.11% and the instalment due on 1 August 2020 corresponds to 18.80% of the total transfer. In sum, the Single judge understood that, at this moment, 51.91% (i.e. 25%+8.11%+18.80%) of the applicable sell-on fee is due at the date of this decision, i.e. EUR 2,627,000 = EUR 5,060,682.54*51.91%.

29. Consequently, in strict application of the principle of pacta sunt servanda, the Single Judge of the PSC established that the Respondent has to pay to the Claimant, the total outstanding amount of EUR 2,627,000, correspondent to the currently due sell-on fee.

30. Moreover, taking into account the request of the Claimant as well as the longstanding jurisprudence in this regard, the Single Judge of the PSC decided to award 5% interest p.a. over said amount as from the due dates.

31. In this respect, the Single Judge noted that the sell-on fee stipulated that related payments “shall be made within seven (7) days of the later of the following dates: (i) receipt of funds by BETIS SEVILLE and –(ii) date on which a valid invoice from PARIS SAINT-GERMAIN is received by BETIS SEVILLE.”.

32. Hence, considering the information concerning payments between Betis and Tottenham as available in the TMS, the Single Judge understood that interests would be payable as from 23 August 2019 (in relation to the ITC), 17 January 2020 and 15 August 2020.

33. In this regard, the Single Judge noted that said instalments correspond to 51.91% of the total applicable sell-on fee, and that consequently, in order to determine their respective amount and due date, it was necessary to adjust them to a proportional weight of each to a base 100. In particular, the Single Judge considered that, proportionally, said instalments can be adjusted under the formula if 51.91+92.65%= 100, then x + 92.65% = 100.

34. Therefore, by using the aforementioned formula, the Single Judge noted that, on a base 100, the instalments can be established as follows:

- The first instalment would correspond to 48.16% (i.e. 25+92.65%) of the awarded amount,

- The second instalment would correspond to 15.62 % (i.e. 8.11+92.65%) of the awarded amount,

- The third instalment to 36.21% (i.e. 18.80+92.65%) of the awarded amount,

35. Therefore, the Single Judge established that, for a currently due outstanding amount of EUR 2,627,000, the interests could be proportionally distributed, for the first instalment, to 48.16% of the total amount (i.e. EUR 1,260,960 ≈ 48.16%*2,627,000), for the second instalment, to 15.62% of the total amount (i.e. EUR 410,337 ≈ 15.62%*2,627,000) and, for the third instalment, to 36.21% to the total amount (i.e. EUR 955,703 ≈ 36.21%*2,627,000). The Single Judge noted in this respect that said amounts were subject to slight adjustments for consistency reasons, without prejudice to the final awarded amount.

36. In addition, as to the procedural costs, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered.

37. Furthermore, taking into account the previous considerations, the Single Judge of the PSC referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its 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.

38. In this regard, the Single Judge of the PSC 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.

39. Therefore, bearing in mind the above, the Single Judge of the PSC decided that, in the event that the Respondent does not pay the amounts due to the Claimant 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 Respondent, 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 Respondent in accordance with art. 24bis par. 2 and 4 of the Regulations.

40. Finally, the Single Judge of the PSC 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 PSC

1. The claim of the Claimant, Paris Saint-Germain, is partially accepted.

2. The Respondent, Real Betis Balompié, has to pay to the Claimant, the amount of EUR 2,627,000, plus interest p.a. as follows:

- 5% interest p.a. over the amount of EUR 1,260,960 as from 23 August 2019 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 410,337 as from 17 January 2020 until the date of effective payment;

- 5% interest p.a. over the amount of EUR 955,703 as from 15 August 2020 until the date of effective payment.

3. Any further claims of the Claimant are rejected.

4. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

5. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

6. In the event that the amount due, plus interest as established 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 following consequences shall arise:

1.

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. The aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.

(cf. art. 24bis of the Regulations on the Status and Transfer of Players).

2.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

7. This decision is rendered without costs.

For the Single Judge of the PSC:

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).

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