Decision of the Single Judge of the Players Status Committee passed in Zurich, Switzerland, on 24 November 2015, 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 between the parties relating to the player
I. Facts of the case 1. On 3 October 2014, the club from country B, Club A (hereinafter: the Claimant), and the club from country D, Club C (hereinafter: the Respondent), concluded a transfer agreement for the transfer of the player, (hereinafter: the player), from the Claimant to the Respondent. The aforesaid transfer agreement stipulated, inter alia, that: [The Respondent], ( ), hereby promises to permanently buy the sporting services of the ( ), currently signed up with [the Claimant], at the following conditions: 1. 300,000 to be paid to [the Claimant] in 2 equal instalments as follows: 1.1 150,000 by 3rd January 2015; 1.2 150,000 by 30th June 2015. ( ) 3. In case of subsequent transfer of the to a third club on a permanent basis, [the Claimant] shall be entitled to receive from [the Respondent] the 15% (fifteen percent) the future transfer profit, after deducting the payment referred to in point 1. 2. On 6 February 2015, the Claimant lodged a claim in front of FIFA, which was amended on 24 March 2015, against the Respondent for breach of contract indicating that the Respondent had failed to pay the first instalment of the transfer fee stipulated in clause 1.1 of the transfer agreement. In view of the foregoing, the Claimant requested the payment of EUR 150,000 plus interest according to art. 102 and 104 of the Swiss Code of Obligations as of 4 January 2015 from the Respondent. 3. In reply to the Claimant s claim, the Respondent firstly stressed that the player never signed an employment contract with the Respondent and never showed up in country D. Further to this, the Respondent pointed out that the Claimant was aware of the fact that the player did not show up in country D. 4. Moreover, the Respondent stated that the parties, in the course of the negotiations, concluded a preliminary agreement (i.e., the agreement of 3 October 2014), whereby they reported their provisional financial terms. As the transfer was not finalised, neither through a valid employment contract between the Respondent and the player, nor a valid transfer agreement between the Claimant and the Respondent, the Respondent has no obligation of any kind towards the Claimant. 5. Furthermore, the Respondent argued that, contrary to the opinion of the Claimant, the agreement which was concluded between the Claimant and the 2
Respondent is a preliminary agreement and therefore not a final and binding transfer agreement. 6. In continuation, the Respondent pointed out that the agreement should be interpreted according to the jurisprudence of the Swiss Federal Tribunal, i.e. through establishing the mutual intention of the parties. Further to this, the Respondent explained that the true and genuine intention of the parties when entering into the preliminary agreement was to ensure that [the Claimant] would not transfer the player to any other club than [the Respondent] within the upcoming registration period, in exchange for financial compensation agreed in advance. 7. In support of its argument, the Respondent highlighted that -the preliminary agreement is only a one-page document which includes only commercial terms; -the parties entered into the agreement outside of the registration periods; -the wording of the agreement indicates the provisional nature (e.g. promises to permanently buy the sporting services of the player ); -the agreement establishes only obligations for the Respondent and not for the Claimant and has therefore a unilateral nature and cannot be considered as a valid and binding transfer agreement; -the Claimant never entered any information with respect to the transfer into the Transfer Matching System (TMS). 8. In its replica, the Claimant firstly argued that, after having signed the agreement on 3 October 2014, the Respondent offered the player an employment contract which contained all essential elements which need to be included in an employment contract in order to be valid and binding, i.e. the duration of the employment and the remuneration as well as the signatures of the parties to express their will to conclude the employment relationship. 9. Furthermore, the Claimant stressed that the wording prospective transfer does not appear at all in the agreement. 10. Moreover, the Claimant stated that based on the agreement, the Claimant immediately released the player in order to be registered with the Respondent. Further to this, and after learning about the fact that the player did not show up in country D, despite having been officially invited by the Respondent, the Claimant tried to convince the player to fulfil his obligations. However, the Claimant pointed out that it was not in the position to legally force the player as he was not any longer contractually bound to the Claimant. 11. In continuation, the Claimant set forth that the will of both parties was to accept the transfer of the player from the Claimant to the Respondent. Therefore, according to the Claimant the principle of pacta sunt servanda must be respected. 3
12. Regarding the argument of the Respondent that the Claimant failed to enter the relevant information into TMS, the Claimant pointed out that this responsibility lies only with the Respondent and the Claimant cannot be held liable in this respect. 13. With respect to the interpretation of the transfer agreement, the Claimant once again argued that the esentialia negotii are clearly agreed upon in the agreement between the clubs as well as in the agreement between the Respondent and the player, and further to this, the Claimant highlighted that the principle of pacta sunt servanda should be respected in this regard. 14. Finally, the Claimant concluded that each party of a tripartite agreement must be held responsible for its/his relevant part of obligations. In this respect, the Claimant concluded that a party cannot step back from a tripartite agreement without legal consequences. 15. On 2 July 2015, the Claimant extended its claim to the amount of EUR 300,000 as the second instalment according to clause 1.2 of the transfer agreement became due in the meantime. In view of the foregoing, the Claimant requested the payment of EUR 150,000 plus 5% interest as of 4 January 2015 and EUR 150,000 plus 5% interest as of 1 July 2015. 16. In its duplica, the Respondent reiterated its position and added that, contrary to the argument of the Claimant, the transfer of a player does not constitute a tripartite agreement, but rather two independent contracts, namely a transfer agreement and an employment agreement. Further to this, the Respondent repeated that it never signed any of the two contracts, neither a valid transfer agreement nor an employment agreement. 17. Finally, the Respondent argued that it is common knowledge that payment for transfer compensation is conditional upon a player s actual move from one club to another. II. Considerations of the Single Judge of the Players Status Committee 1. First of all, the Single Judge of the Players Status Committee (hereinafter: the Single Judge) analysed which Procedural Rules were applicable to the matter at hand. In this respect, he referred to art. 21 of the Rules Governing the Procedures of the Players Status Committee and the Dispute Resolution Chamber (editions 2014 and 2015; hereinafter: the Procedural Rules) as well as to the fact that the present matter was submitted to FIFA on 6 February 2015, thus after 1 August 2014 but before 1 March 2015. Therefore, the Single Judge concluded that the 2014 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 4
matter. In this respect, he referred, on the one hand, to art. 26 par. 1 and 2 of the 2014 and 2015 editions 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 6 February 2015. In view of the foregoing, the Single Judge concluded that the 2014 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 of the Procedural Rules in connection with art. 23 par. 1 and par. 3 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. 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 acknowledged that the Claimant, being of the opinion that a valid transfer agreement has been concluded with the Respondent, is claiming the amount of EUR 300,000 plus interest. In this respect, the Single Judge noted that the Claimant had provided FIFA with a copy of the transfer agreement for the transfer of the player, duly signed by both the Claimant and the Respondent, which stipulated, inter alia, the following: [The Respondent], ( ), hereby promises to permanently buy the sporting services of the ( ), currently signed up with [the Claimant], at the following conditions: 1. 300,000 to be paid to [the Claimant] in 2 equal instalments as follows: 1.3 150,000 by 3rd January 2015; 1.4 150,000 by 30th June 2015. ( ) 6. Furthermore, the Single Judge took note that, in its reply, the Respondent stated that it is not liable to pay the transfer compensation as the player did not appear at the club nor signed an employment agreement with the Respondent. 5
7. Likewise, the Single Judge observed that the Respondent pointed out that the alleged transfer agreement was only a preliminary agreement stipulating provisional financial terms, pending on the finalisation of the transfer of the player, which never happened. 8. On account of the above, the Single Judge considered that he had to determine whether or not a transfer agreement had been concluded between the Claimant and the Respondent for the transfer of the player. In this respect, the Single Judge took note of the transfer agreement submitted by the Claimant which clearly carried the signatures of the Claimant and the Respondent as well as the financial terms for the transfer of the player. Additionally, the Single Judge wished to point out that the transfer agreement did not contain any conditions that would need to be fulfilled in order for the transfer agreement to become binding for both parties. 9. In addition, the Single Judge was eager to point out that the Respondent s attitude clearly showed that it expected that the player would join the club. In this respect, the Single Judge referred to the documentation contained in the file, more in particular the email dated 6 December 2014 by means of which the Respondent invited the player to join the club on 27 December 2014 as well as the letter sent by the Respondent to the Claimant on 10 February 2015 in which the Respondent stated that the player had previously agreed in writing upon the terms of an employment contract and that it was determined to take action in order to protect its interests against this clear breach of contract. 10. On account of the above, the Single Judge held that it was beyond doubt that the Claimant and the Respondent had agreed upon the transfer of the player and had concluded a valid transfer agreement by means of which the player was transferred from the Claimant to the Respondent for the total amount of EUR 300,000. Consequently, the Single Judge held that, 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, the Respondent has to fulfill its contractual obligations towards the Claimant. Therefore, and taking into account the claim of the Claimant, the Single Judge decided that the Respondent has to pay to the Claimant the outstanding amount of EUR 300,000 corresponding to the two installments as agreed upon in the pertinent transfer agreement. 11. In conclusion, the Single Judge decided to accept the claim of the Claimant and determined that the Respondent is liable to pay to the Claimant the total amount of EUR 300,000 plus interest on said amount until the date of effective payment as follows: 6
- 5% p.a. on the amount of EUR 150,000, as from 4 January 2015; - 5% p.a. on the amount of EUR 150,000, as from 1 July 2015. 12. 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). 13. In respect of the above, and taking into account that the Claimant is the successful party in the present proceedings, the Single Judge concluded that the Respondent has to bear the full costs of the current proceedings before FIFA. 14. 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. On that basis, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 300,000. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 25,000. 15. In conclusion, taking into account the particularities of the present matter and considering it was adjudicated by the Single Judge and not by the Players Status Committee in corpore, the Single Judge determined the costs of the current proceedings to the amount of CHF 10,000. 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 10,000 has to be paid by the Respondent. ***** 7
III. Decision of the Single Judge of the Players Status Committee 1. The claim of the Claimant, Club A, is accepted. 2. The Respondent, Club C, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of EUR 300,000 plus 5% interest p.a. until the date of effective payment as follows: a) 5% p.a. on the amount of EUR 150,000 as from 4 January 2015; b) 5% p.a. on the amount of EUR 150,000 as from 1 July 2015. 3. In the event that the amount plus interest due to the Claimant in accordance with the above-mentioned number 2. is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to the FIFA Disciplinary Committee for consideration and a formal decision. 4. The final costs of the proceedings in the amount of CHF 10,000 are to be paid by the Respondent within 30 days as from the date of notification of the present decision as follows: 4.1. The amount of CHF 5,000 has to be paid to FIFA to the following bank account with reference to case nr. xxxxxxxxx: UBS Zurich Account number 366.677.01U (FIFA Players Status) Clearing number 230 IBAN: CH27 0023 0230 3666 7701U SWIFT: UBSWCHZH80A 4.2. The amount of CHF 5,000 has to be paid directly to the Claimant. 8
5. The Claimant is directed to inform the Respondent directly and immediately of the account number to which the remittances are to be made in accordance with the above points 2. and 4.2. 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 article 67 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: Markus Kattner Acting Secretary General Encl. CAS Directives 9