Valencia Club de Futbol SAD v. Fenerbahçe Spor Kulübü

II. FACTUAL BACKGROUND — A. Background Facts

3. On 7 July 2015, L. (the “Player”) and Fenerbahce concluded an employment contract (the “Employment Contract”) for three sporting seasons, i.e. as from the moment of signing until 31 May 2018. Clause 7(A) of the Employment Contract determines as follows:

“The parties mutually agree and expressly accept in advance that, if at the end of the TFF football season 2015- 2016 (i.e. 30 June 2016 at the latest), the Club should receive a written offer from another club interested to register the Player for an amount of EUR 8,500,000.00/- (Eight Million Five Hundred Thousand Euro Only), then the Club shall be obliged to immediately notify in written the Player and permit him as well as his intermediaries/representatives, if any, to enter into negotiations with such other club, should the Player wish to do so. In the event that the Player should then agree with the aforesaid other club for his transfer to the same club, the Club shall be obliged to do all the necessary actions to complete the Player’s transfer accordingly at the first available date thereafter and it will be entitled to receive only the amount of 8,500,000.00/- (Eight Million Five Hundred Thousand Euro Only)”.

4. On 21 and 22 June 2016, representatives of Valencia and Fenerbahce held negotiations in Istanbul, Turkey, with regard to Valencia’s intention to execute the buy-out clause in the Employment Contract.

5. On 27 June 2016, Valencia’s President informed Fenerbahce as follows:

“We hereby NOTIFY you, following our meetings hold in Istambul on the 21 and 22 of June with Mr. Usiman, Mr. Mamut Uslu, Mr. Sekip Mosturoglu and Mr. Hasan Cetinkaya about the formal purpose of [Valencia] to execute the buyout clause of the [Player], and to obtain the permanent acquisition of the federative and economic rights [of] the [Player], currently football player of [Fenerbahce].

The terms and conditions of this acquisition offer would be according to the wording of the buyout clause settled in the labour agreement between [Fenerbahce] and the [Player]:

[Fenerbahce] should received a written offer from another club interested to register the [Player] for an amount of EIGHT MILLION FIVE HUNDRED THOUSAND EURO (8.500.000,00€) to acquire definitely

the federative and economic rights relating to the Player, free of any taxes, encumbrances, claims, charges, liens and rights of any third parties.

By virtue of this letter, [Valencia] kindly requests to [Fenerbahce] (i) the authorization to enter into discussion with the [Player] (ii) to arrange a medical test between [Valencia] and the [Player] and (iii) to initiate all the process and to do all necessary actions to complete the [Player’s] transfer at the first date available.

The present offer is subject to i) the consent and acceptance of [the Player] to the transfer of his definitive federative rights from [Fenerbahce] to [Valencia] and ii) the satisfactory completion of the player’s medical test conducted by [Valencia’s] medical staff.

In any case, this offer is subject to the signing of the relevant agreements by all the parties.

We look forward to your favourable response to our offer and to working with you towards a completion of the transaction as expeditiously as possible”.

6. On 28 June 2016, Fenerbahce’s Finance Director informed the Player that he was granted permission to enter into discussions with Valencia.

7. On 28 June 2016, Fenerbahce’s Finance Director informed Valencia as follows:

“We have received your offer letter about executing the buyout clause and obtaining acquisition of the federative and economic rights of our [Player].

We have immediately notified our [Player] about your kind offer and authorized the [Player] in order to enter discussions with your club.

We hereby give authorization to you (i) to enter into discussion with the abovementioned Player, (ii) to arrange a medical test between you and the [Player] and (iii) to initiate all the process and to do all necessary actions to complete [Player’s] transfer at the first date available.

As you are well aware of that the buyout clause of the [Player] can be executed only if you agree with the [Player] in terms of conditions to conclude a contract and the payment is made in one single instalment to the bank account given below: […]

Thank you in advance for your co-operation”.

8. On 4 July 2016, Valencia’s President informed Fenerbahce that Valencia had reached an economic agreement with the Player.

9. On 5 July 2016, Valencia transferred a sum of EUR 8,500,000 to Fenerbahce and provided the latter with proof of payment.

10. On 11 July 2016, Real Sport Clube, a former club of the Player, requested Valencia to be paid solidarity contribution in an amount of EUR 119,127.05.

11. On 12 July 2016, Valencia requested Fenerbahce to provide it with an invoice and to enter the relevant information into FIFA’s Transfer Matching System (“FIFA TMS”).

12. Also on 12 July 2016, Fenerbahce provided Valencia with an invoice, indicating as follows: “L. TRANSFER FEE”.

13. On 21 July 2016, following additional correspondence between the parties regarding certain formalities that are not relevant for the matter at hand, Mr Özge Tokarli of Fenerbahce’s Legal Department informed Mr Jesus Paniagua, representative of Valencia, as follows by email:

“I put the details on system. But there’s a mismatch information. 8.500.000 Euro paid as release buy-out fee. I think you have to change it on TMS”.

14. The mismatch in FIFA TMS was caused by the fact that Valencia indicated that the amount of EUR 8,500,000 represented a “transfer fee”, whereas Fenerbahce indicated that this amount represented a “buy-out fee”.

15. Also on 21 July 2016, Mr Paniagua responded as follows:

“We have introduced the order extracting the information from your invoice (please check it) where expressly indicates that the payment consists in a transfer fee payment. Please modify it and also the sell on fee concept (by mistake you have introduced the name of your club) which is not applicable”.

16. Also on 21 July 2016, Mr Tokarli responded as follows:

“We will modify the invoice then send you immediately. […]”.

17. Shortly after such email, Fenerbahce provided Valencia with an amended invoice referring to “buy-out clause article 7” instead of “transfer fee”.

18. Also on 21 July 2016, Valencia ultimately changed the entry “transfer fee” to “buy-out fee”, thereby resolving the mismatch.

19. Also on 21 July 2016, an external counsel for Valencia informed Mr Tokarli as follows:

“I am contacting you on behalf of my client [Valencia], regarding the transfer of the [Player] and I would like to point out as follows:

a) You have contacted the club in order to change the modification of the concept of transfer in the FIFA TMS as well as the very invoice sent by Fenerbahce.

b) As it has been told by [Valencia], we can’t accept the modification of the initial invoice (for the reasons explained in our previous emails).

c) For the sake of having the transfer done and the TMS matches, we do accept to modify the concept to be introduced into the FIFA TMS System so you could get the ITC urgently.

d) However, this modification does not change the contract with the player and its wording, as well as it does not change the invoice too.

e) For the sake of clarity please be informed that [Valencia] reserves all its legal rights to take any possible further legal action in connection with this matter in order to defend our interests”.

20. On 26 July 2016, the Player was registered with Valencia.

21. On 27 October 2016, Sporting Clube de Portugal, a former club of the Player, requested Valencia to be paid solidarity contribution in an amount of EUR 155,890.

22. On 7 November 2016, Mr Paniagua requested Fenerbahce to either pay solidarity contribution to all the clubs that participated in the training of the Player directly, or alternatively, to disburse the same amount to Valencia so that the latter could pay these clubs.

23. On 29 November 2016, Mr Tokarli of Fenerbahce informed Valencia as follows:

“First of all we would like to state that again; according to FIFA RSTP, the club who transfers the player is obliged to distribute the solidarity contribution to any and all clubs which have participated in the trainings and education of the Player.

It can be understood from the related regulation that, a professional football club which concludes transfers of professionals should absolutely know about its responsibility for solidarity contribution. [Fenerbahce] was acting in good faith since the first day of the related transfer negotiations with Valencia hence Fenerbahce fulfilled all of its obligations within the scope of this transfer.

The 8.5 million Euro set forth in the Player’s agreement constitutes a “certain amount” in order to exercise the buy-out clause. As a matter of fact, in the case that [Fenerbahce] was paid the deducted amount by Valencia, then it would be impossible to exercise the aforementioned buy-out clause.

In the light of the explanations above, [Fenerbahce] is not in a position to distribute the amount in question as a former club. It is clear that [Valencia] exercise [sic] the “buy-out clause” in Player’s agreement for this transfer and therefore paid the related amount unconditionally. Valencia omitted to place any kind of legal reservation which may cause [Fenerbahce’s] liability to any further club regarding the solidarity contribution of [the Player]. In addition to that, Valencia did not stipulate any other conditions regarding the liability of Fenerbahce. [Fenerbahce], as a professional Football club, is well aware of the relevant regulations and jurisprudence on solidarity contribution and therefore cannot be held liable for the Valencia’s act which is contrary to the understanding between parties.

The understanding between [Fenerbahce] and [Valencia] regarding the transfer of the Player and the related amount is incontrovertibly explicit and again it is Valencia’s duty to distribute solidarity contribution as a club which transferred the Player”.

24. On 30 and 31 March 2017, Valencia paid solidarity contribution to three former clubs of the Player, i.e. Real Sporte Clube, Sporting Clube de Portugal and Manchester United FC, in the total amount of EUR 402,010.52.

25. A legal dispute ensued between the parties as to whether the payment of EUR 8,500,000 was net of solidarity contribution, i.e. that Valencia had to pay solidarity contribution on top of the payment of EUR 8,500,000 to Fenerbahce, or whether the payment of EUR 8,500,000 included solidarity contribution, i.e. that Fenerbahce had to reimburse Valencia with the amount of solidarity contribution paid by Valencia to the three clubs mentioned in the above paragraph.

B. Proceedings before the Single Judge of FIFA’s Players’ Status Committee

26. On 12 May 2017, Valencia filed a claim against Fenerbahce before the Single Judge of FIFA’s Players’ Status Committee (the “FIFA PSC Single Judge”), requesting the reimbursement of solidarity contribution in the amount of EUR 402,010.52, plus interest, and that Fenerbahce should cover the costs of the proceedings as well as legal fees in the amount of EUR 10,000.

27. Fenerbahce objected against the jurisdiction of the FIFA PSC Single Judge and disputed Valencia’s claim.

28. On 5 June 2018, the FIFA PSC Single Judge rendered his decision (the “Appealed Decision”), with the following operative part:

“1. The claim of [Valencia] is admissible.

2. The claim of [Valencia] is rejected.

3. The final amount of costs of the proceedings in the amount of CHF 20,000 are to be paid by [Valencia] to FIFA. Given that the latter has already paid the amount of CHF 5,000 as advance of costs at the start of the present proceedings, the amount of CHF 15,000 has to be paid by [Valencia], within 30 days of notification of the present decision, to FIFA to the following bank account […]”.

29. On 20 September 2018, the grounds of the Appealed Decision were communicated to the parties, determining, inter alia, as follows:

- “[…] Having established the above, the Single Judge acknowledged that, on 7 July 2015, the [Player] and [Fenerbahce] concluded an employment contract for the period between 7 July 2015 and 31 May 2018, which contained a buy-out clause in the amount of EUR 8,500,000. Equally, the Single Judge noted that [Valencia] made use of said buy-out clause in order to acquire the [Player’s] services, as a result of which the [Player] was transferred to and registered with [Valencia] on 26 July 2016.

- In this context, the Single Judge noted that [Valencia] asserted that it omitted to deduct the solidarity contribution in relation with the transfer of the [Player] when it paid the amount of EUR 8,500,000 to [Fenerbahce].

- In continuation, the Single Judge observed that [Valencia] provided evidence of having distributed the total amount of EUR 402,010.52 to Real Sport Clube, Sporting Clube de Portugal and Manchester United FC as solidarity contribution in relation with the transfer of the [Player] and according to art. 21 and Annexe 5 of the Regulations and that it asked that [Fenerbahce] be ordered to reimburse said amount.

- Similarly, the Single Judge noted that, for its part, [Fenerbahce] alleged that clause 7 par. 1 of the [Employment Contract] being a buy-out clause, the amount of EUR 8,500,000 contained therein is a net amount, as only the payment of EUR 8,500,000 would trigger the transfer of the [Player] from [Fenerbahce] to [Valencia].

- In this regard, the Single Judge referred to art. 21 of the Regulations in combination with art. 1 of Annexe 5 of the Regulations which stipulate that, if a professional moves during the course of a contract, 5% of any compensation, not including training compensation paid to his former club, shall be deducted from the total amount of this compensation and be distributed by the new club as a solidarity contribution to the club(s) involved in the training and education of the [Player] in proportion of the number of years the [Player] has been registered with the relevant club(s) between the seasons of his 12th and 23rd birthday.

- Moreover, the Single Judge referred to the jurisprudence of the Dispute Resolution Chamber in accordance with which the solidarity mechanism as provided for in art. 21 and Annexe 5 of the Regulations is applicable to compensation paid by the new club on the basis of a buy-out clause contained in the employment contract of a player with his former club, as in the matter at hand.

- Furthermore, the Single Judge highlighted that it remained undisputed that [Valencia] had paid 100% of the amount of the buy-out clause to [Fenerbahce], i.e. EUR 8,500,000.

- At this stage, the Single Judge turned his attention to the wording of clause 7 par. 1 of the [Employment Contract], which reads as follows: […]. In this respect, the Single Judge underscored that [Fenerbahce] and the [Player] agreed upon the early termination of the [Player’s] employment relationship in the event that another club offers [Fenerbahce] the amount of EUR 8,500,000 for the services of the [Player] and the [Player] reaches an agreement with the relevant other club.

- Likewise, the Single Judge referred to jurisprudence of the Dispute Resolution Chamber (DRC) and the Court of Arbitration for Sport (CAS) submitted by the parties, pursuant to which the wording of the Regulations does not prohibit that the amount specified in a transfer agreement represents only 95% of the gross transfer value, as long as the solidarity contribution in the end is still deducted from the gross transfer value and distributed in conformity with the wording of art. 1 of Annexe 5 of the Regulations. The Single Judge considered that the same applies, by analogy, to the amount specified in a buy-out clause.

- Having said that, the Single Judge agreed with the argumentation put forward by [Fenerbahce] in that only the payment of EUR 8,500,000 would trigger the buy-out of the [Player], i.e. the payment of EUR 8,500,000 minus the 5% of solidarity contribution would not result in the early termination of the [Employment Contract].

- On account of the above, the Single Judge concluded that the amount of EUR 8,500,000 is indeed to be considered a net amount, which thus represents the 95% of the total compensation paid by [Valencia] in connection with the transfer of the [Player] from [Fenerbahce] to [Valencia]. In light of the foregoing, the Single Judge decided that the aforementioned consideration could lead to no other conclusion than that, in line with art. 21 of the Regulations in combination with art. 1 of Annexe 5 of the Regulations, [Valencia] shall bear the financial obligations pertaining to the solidarity contribution.

- In view of all the above, the Single Judge decided to reject [Valencia’s] claim for the reimbursement of the solidarity contribution in connection with the transfer of the [Player] from [Fenerbahce] to [Valencia].

- Moreover, the Single Judge decided to reject [Valencia’s] claim pertaining to legal costs in accordance with art. 18 par. 4 of the Procedural Rules and the PSC’s respective longstanding jurisprudence in this regard”.

III. PROCEEDINGS BEFORE THE COURT OF ARBITRATION FOR SPORT

30. On 8 October 2018, in accordance with Article R48 of the Code of Sports-related Arbitration (edition 2017) (the “CAS Code”), Valencia filed a Statement of Appeal with the Court of Arbitration for Sport (the “CAS”), challenging the Appealed Decision. Valencia nominated Dr Hans Nater, Attorney-at-Law in Zurich, Switzerland, as arbitrator.

31. On 12 October 2018, upon being invited by the CAS Court Office to express its position in this regard, FIFA renounced its right to request its possible intervention in the present arbitration proceedings.

32. On 25 October 2018, Fenerbahce nominated Mr Lars Hilliger, Attorney-at-Law in Copenhagen, Denmark, as arbitrator.

33. On 5 November 2018, in accordance with Article R51 CAS Code, Valencia filed its Appeal Brief.

34. On 16 November 2018, pursuant to Article R54 CAS Code, and on behalf of the President of the CAS Appeals Arbitration Division, the parties were informed that the arbitral tribunal appointed to decide the present matter was constituted by:

- Mr Hendrik Willem Kesler, Attorney-at-Law in Enschede, the Netherlands, as President;

- Dr Hans Nater, Attorney-at-Law in Zurich, Switzerland;

- Mr Lars Hilliger, Attorney-at-Law in Copenhagen, Denmark.

35. On 26 November 2018, the CAS Court Office informed the parties that Mr Dennis Koolaard, Attorney-at-Law in Arnhem, the Netherlands, had been appointed as Ad hoc Clerk.

36. On 7 December 2018, in accordance with Article R55 CAS Code, Fenerbahce filed its Answer.

37. On 19 December 2018, upon being invited by the CAS Court Office to indicate their positions in this respect, both parties requested a hearing to be held.

38. On 7 March 2019, both parties returned duly signed copies of the Order of Procedure to the CAS Court Office.

39. On 20 March 2019, a hearing was held in Lausanne, Switzerland. At the outset of the hearing, both parties confirmed that they had no objection to the constitution and composition of the arbitral tribunal.

40. In addition to the Panel, Daniele Boccucci, Counsel to the CAS, and the Ad hoc Clerk, the following persons attended the hearing:

For Valencia:

1) Mr Alfonso León, Counsel

For Fenerbahce:

1) Ms Özge Tokarh Gündüz, in-house lawyer;

2) Mr Christian Keidel, Counsel;

3) Mr Paul Fischer, Counsel.

41. The Panel heard evidence from the following persons, in order of appearance:

1) Mr Javier Solís, representative of Valencia during the negotiations with Fenerbahce, witness called by Valencia (by video-conference);

2) Mr Jesus Paniagua, representative of Valencia during the negotiations with Fenerbahce, witness called by Valencia (by video-conference).

42. All witnesses were invited by the President of the Panel to tell the truth subject to the sanctions of perjury under Swiss law. Both parties and the Panel had the opportunity to examine and cross-examine the witnesses. The parties then had ample opportunity to present their case, submit their arguments and answer the questions posed by the Panel.

43. Before the hearing was concluded, both parties expressly stated that they did not have any objection with the procedure adopted and that their right to be heard had been respected.

44. On 23 April 2019, upon being granted a deadline to try and reach an amicable solution to their dispute, both parties informed the CAS Court Office that they had not been able to do so.

45. The Panel confirms that it carefully heard and took into account in its decision all of the submissions, evidence, and arguments presented by the parties during the hearing, even if they have not been specifically summarised or referred to in the present arbitral award.

IV. SUBMISSIONS OF THE PARTIES — A. The Appellant

46. Valencia’s submissions, in essence, may be summarised as follows:

- The appeal proceedings at hand are exclusively related to whether the payment made by Valencia to Fenerbahce in the amount of EUR 8,500,000 should be considered as a net amount or not.

- With reference to CAS jurisprudence, Valencia submits that the burden of proof is always on the former club to prove that an express and explicit internal arrangement existed between the parties to shift the financial burden of the solidarity contribution from what is stipulated in the FIFA Regulations on the Status and Transfer of Players (the “FIFA RSTP”), i.e. that the solidarity contribution must not be deducted from the transfer agreed to be received by the former club, but should be added on top of it.

- Fenerbahce has not proven that any eventual internal arrangement was agreed by and between the parties to shift the financial burden of the solidarity contribution from Fenerbahce to Valencia. As a result thereof, it must be concluded that no deviation occurred from the standard practice when it comes to the implementation of solidarity mechanism, i.e. the new club distributes it, but the former club is the one effectively burdening it as the solidarity contribution levy must be deducted from the transfer fee to be received by the former club.

- The inconsistency of the Appealed Decision appears from the fact that if any such internal agreement would have existed, quod non, this would mean that EUR 8,500,000 would represent 95% of the transfer fee agreed between the parties and not 100%. Consequently, the basis to calculate the portion of solidarity contribution that Real Sport Clube, Sporting Clube de Portugal and Manchester United FC should then have been EUR 8,947,365 and not EUR 8,500,000. Neither Fenerbahce, FIFA nor any of the three clubs mentioned above have ever claimed this.

- Only the Appealed Decision opted for such interpretation following a most unsubstantiated approach.

- If the Appealed Decision were upheld, one of the pillars sustaining solidarity contribution, which is not left to the discretion of the parties to a transfer agreement in light of the well-established jurisprudence of CAS, would be contravened, i.e. that the entire solidarity contribution should always be 5% of the overall transfer fee.

- Fenerbahce also acted in bad faith. It cooperated with Valencia at all times, even before being presented with a written offer of EUR 8,500,000. Also, the first invoice issued by Fenerbahce refers to a “transfer fee” which is illustrative of the fact that it was well-aware of the implications of considering a move of a player from itself to a third club being considered as a “transfer”. Further, the invoice issued by Fenerbahce was clear in that

EUR 8,500,000 represented the overall transfer fee. Fenerbahce’s failure to specify therein that it was to be considered as a net transfer fee, i.e. not inclusive of solidarity contribution, thereby trying to mislead Valencia, must be construed to the detriment of Fenerbahce. Fenerbahce also drafted the Employment Contract, the invoice issued to Valencia as well as other communications to the Player. At no stage was it determined that the amount of EUR 8,500,000 was net of solidarity contribution.

- The bad faith of Fenerbahce is obvious when noting that only after receiving the payment from Valencia on 5 July 2016, having let Valencia enter into a binding employment contract with the Player on 14 July 2016, and after Fenerbahce entered into a mutual termination agreement with the Player on 14 July 2016 which cleared Fenerbahce of all liabilities towards the Player, Fenerbahce issued a statement on 21 July 2016 determining that it i) supposedly “had not agreed” to the move of the Player to Valencia; ii) this exclusively in order to pretend that no transfer had taken place; iii) with the sole aim of deceitfully preparing its position in order to subsequently refuse to reimburse Valencia the solidarity contribution; and iv) attempt thereby to somehow create its upcoming case before the FIFA judicial bodies.

- All factual and legal considerations of the case should lead this honourable panel to rule that the entire solidarity contribution arising out of the transfer of the Player to Valencia shall be burdened entirely by Fenerbahce.

47. Valencia submits the following requests for relief:

“1. To accept this appeal against the Decision;

2. To annul the Decision;

3. To order the Respondent the reimbursement to the Appellant of the solidarity contribution portions already anticipated by the latter in connection with the transfer of the Player from the Respondent to the Appellant, in the amount of EUR 402,010.52/-, plus

3.1. 5% interest p.a. on the amount of EUR 155,847.50/- as from the 30th of March 2017;

3.2. 5% interest p.a. on the amount of EUR 127,035.52/- as from the 30th of March 2017; and

3.3 5% interest p.a. on the amount of EUR 119,127.50/- as from the 31st of March 2017.

4. To order the Respondent to cover the legal fees already incurred by the Appellant in the amount of EUR 15,000.00/-;

5. Awarding any such other relief as the Panel may deem necessary or appropriate;

6. To condemn the Respondent to the payment of the whole CAS administration costs and arbitrators fees”.

B. The Respondent

48. Fenerbahce’s submissions, in essence, may be summarised as follows:

- Valencia is not entitled to the claimed reimbursement of the solidarity contribution in the amount of EUR 402,010.52 due to the following reasons:

- First, the transfer of the Player was only based on Clause 7(A) of the Employment Contract, which implies that the payment of EUR 8,500,000 was required without deduction of the solidarity contribution, i.e. that Valencia should bear the financial burden of the solidarity contribution. Any payment less than EUR 8,500,000 would not have triggered the buy-out clause, which interpretation was explicitly confirmed by the parties’ conduct throughout the entire transaction. The wording “receive” is unambiguous. Fenerbahce also relies on the arbitral award issued in CAS 2015/A/4188 and, with reference to Spanish law, submits that the amount paid by Valencia was the net amount to be received by Fenerbahce, without any deduction. This is also confirmed by the parties’ behaviour, because i) Fenerbahce qualified the payment in FIFA TMS as a “buyout fee”; ii) as soon as a mismatch appeared in FIFA TMS between “buy-out fee” and “transfer fee”, Fenerbahce requested Valencia to modify its entry to “buy-out fee”; iii) Valencia agreed to modify its qualification to “buy-out fee”.

- Second, even if there was an underlying transfer agreement (quod non), the parties agreed on the shift of the financial burden regarding the solidarity contribution to Valencia. With reference to CAS jurisprudence, Fenerbahce submits that Article 1 of Annex 5 to the FIFA RSTP does not preclude an agreement under which the new club of a player agrees not to deduct the solidarity contribution from the agreed transfer fee but, instead, bears such payments in addition to such fee. Valencia also explicitly emphasised that the amount of EUR 8,500,000 is “free of any taxes, encumbrances, claims, charges, liens and rights of any third parties”. Accordingly, Valencia did not leave room for any interpretation different than its intention to pay the full amount as stipulated in Clause 7(A) of the Employment Contract without any deduction. This interpretation is further corroborated by the fact that Valencia indeed paid the full amount of EUR 8,500,000 to Fenerbahce, without making the deduction of 5% as foreseen by the mechanism under Article 1 of Annex 5 to the FIFA RSTP. This is only more true because the receipt of an amount of EUR 8,075,000 simply would not have triggered the buy-out clause.

- Third, even if the financial burden regarding the solidarity contribution was not shifted to Valencia (quod non), Valencia is prevented from asking for any reimbursement because it did not even allege that it paid such amount in the erroneous belief that the debt was owed. With reference to Article 63 of the Swiss Code of Obligations (the “SCO”), it is submitted that Valencia does not comply with the criteria for reimbursement because it failed to prove that it had been under the erroneous belief that it owed the full amount to Fenerbahce. It remains unanswered why Valencia paid the full amount of EUR 8,500,000. One can only conclude that it agreed to a net amount of such sum, or it tried to deceive Fenerbahce with the intention to reclaim the owed solidarity contribution at a later stage. In the latter case, Article 63(1) SCO excludes such repayment for good reason.

The reference in the Commentary on the FIFA RSTP (the “FIFA Commentary”) to the possibility to claim back the 5% solidarity contribution in case the entire transfer compensation is paid, is not applicable because the FIFA Commentary has no legally binding effect. The FIFA Commentary was drafted 15 years ago when clubs were still unfamiliar with the FIFA RSTP and mistakes happened. An experienced football club as Valencia can now no longer claim that it does not know how the solidarity contribution system works. In fact, Valencia was aware that a buy-out requires the payment of the full amount to trigger its effect under Spanish law.

- Finally, even if the CAS would find that a reimbursement obligations exists despite the above (quod non), Valencia would be estopped from invoking it based on the principle of venire contra factum proprium.

49. Fenerbahce submits the following requests for relief:

“I. Dismiss all prayers for relief submitted by Valencia;

II. Order Valencia to pay the entire costs of the present proceedings; and

III. Order Valencia to pay the legal fees and expenses of Fenerbahçe, to be determined at a later stage of the proceedings”.