F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2018-2019) – fifa.com – atto non ufficiale – Decision 17 October 2018

Decision of the

Single Judge of the sub-committee of the

Dispute Resolution Chamber (DRC)

passed on 17 October 2018,

by Geoff Thompson (England),

Single Judge of the sub-committee of the DRC,

on the claim presented by the club,

Club A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding solidarity contribution in connection with the transfer

of the player Player E

I. Facts of the case

1. According to the player passport issued by the Football Federation of Country B, the player, Player E, born on 29 January 1996 (hereinafter: the player), was registered with Club A (hereinafter: the Claimant) as from 29 January 2008 until 31 May 2012 as well as from 1 June 2015 until 15 September 2015.

2. The Football Federation of Country B confirmed that the football season in Country B starts on 1 January and ends on 31 December of the respective year.

3. According to the information contained in the Transfer Matching System (TMS), the club of Country F, Club G, and Club C (hereinafter: the Respondent) as well as the Claimant, agreed upon the transfer of the player from Club G to the Respondent involving a transfer compensation amounting to EUR 2,500,000 payable as follows:

a) EUR 1,000,000 payable by the Respondent to Club G “within 5 days from receiving the international transfer certificate (ITC) and the player passes the medical test”;

b) EUR 750,000 payable by the Respondent to Club G on the 1st of January 2017;

c) EUR 750,000 payable by the Respondent to the Claimant “within 5 days from receiving the international transfer certificate (ITC) and the player passes the medical test”.

4. According to the information contained in the Transfer Matching System (TMS) the player was registered with the Respondent, on 5 August 2016.

5. On 29 March 2017, the Claimant lodged a claim in front of FIFA claiming its proportion of the solidarity contribution in connection with the transfer of the player from Club G, to the Respondent. In particular, the Claimant requested 100% of 5% of EUR 2,500,000, plus 5% interest p.a. as of 3 August 2016.

6. On 11 October 2017, the Respondent’s submission was uploaded in the TMS, i.e. after the time limit set by FIFA to reply had expired on 28 September 2017.

II. Considerations of the Single Judge of the sub-committee of the DRC

1. First of all, the Single Judge of the sub-committee of the Dispute Resolution Chamber (hereinafter: the Single Judge) analysed whether he was competent to deal with the matter at stake. In this respect, he took note that the present matter was submitted to FIFA on 29 March 2017. Consequently, the Single Judge concluded that the edition 2017 of the Rules Governing Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states that he shall examine his jurisdiction in light of arts. 22 to 24 of the Regulations on the Status and Transfer of Players (2018 edition). In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations on the Status and Transfer of Players, the Single Judge is competent to decide on the present matter relating to the solidarity mechanism between clubs belonging to different associations.

3. Furthermore, the Single Judge analysed which edition of the Regulations on the Status and Transfer of Players should be applicable as to the substance of the matter. In this respect, the Single Judge referred to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (2016 and 2018 editions). Furthermore, he acknowledged that the player had been registered for the Respondent on 5 August 2016 and that the present claim was lodged on 29 March 2017. In view of the aforementioned, the Single Judge concluded that the edition 2016 of the Regulations on the Status and Transfer of Players (hereafter: the Regulations) is applicable to the case 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, he started by acknowledging all the above-mentioned facts as well as the arguments and documentation submitted by the parties. However, the Single Judge emphasized 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 recalled 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 documentation or evidence generated or contained in the Transfer Matching System (TMS).

5. In continuation, the Single Judge started by acknowledging that the Claimant requested 100% of the 5% of the transfer compensation paid by the Respondent to the club of Country F, Club G, and to the Claimant itself, plus 5% interest p.a. as of 3 August 2016.

6. Moreover, the Single Judge observed that the Respondent, in spite of having been invited to do so, had, for its part, failed to present its response to the claim of the Claimant within the relevant time limit set by FIFA, i.e. 28 September 2017. As a result, bearing in mind the Dispute Resolution Chamber’s constant jurisprudence in this regard and in application of art. 9 par. 3 of the Procedural Rules, the Single Judge decided not to take into account the reply of the Respondent and established that, in accordance with the aforementioned provision, he shall take a decision on the basis of those documents on file that were provided prior to the deadline set by FIFA, in casu, on the statements and documents presented by the Claimant.

7. Having established the above, the Single Judge referred to art. 21 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 between the seasons of his 12th and 23rd birthday.

8. In this respect, the Single Judge took due note that the player, born on 29 January 1996, was registered with the Claimant as from 29 January 2008 until 31 May 2012 as well as from 1 June 2015 until 15 September 2015, i.e.:

- during 11 months of the season of the player’s 12th birthday,

- during 12 months of the season of the player’s 13th birthday;

- during 12 months of the season of the player’s 14th birthday;

- during 12 months of the season of the player’s 15th birthday

- during 5 months of the season of the player’s 16th birthday;

- during 4 months of the season of the player’s 19th birthday.

9. Turning his attention to the relevant calculation, the Single Judge took into account that, according to the relevant transfer agreement, the Respondent agreed upon a transfer compensation amounting to the total amount of EUR 2,500,000, payable as follows:

a) EUR 1,000,000 payable by the Respondent to Club G “within 5 days from receiving the international transfer certificate (ITC) and the player passes the medical test”;

b) EUR 750,000 payable by the Respondent to Club G on the 1st of January 2017;

c) EUR 750,000 payable by the Respondent to the Claimant “within 5 days from receiving the international transfer certificate (ITC) and the player passes the medical test”.

10. On account of the above and in accordance with art. 1 of Annexe 5 of the Regulations, the Single Judge considered that the Claimant is, thus, entitled to receive solidarity contribution for the period as from 29 January 2008 until 31 May 2012 as well as from 1 June 2015 until 15 September 2015, i.e. for 11 months of the season of the player’s 12th birthday, for the entire seasons of the player’s 13th, 14th, and 15th birthday, for 5 months of the season of the player’s 16th birthday and for 4 months of the season of the player’s 19th birthday. In terms of the percentage of the 5% solidarity contribution, the Single Judge calculated that, on a pro rata basis, this corresponds to 27.07% of 5% as opposed to the 100% of 5% claimed by the Claimant.

11. Therefore, the Single Judge concluded that the Claimant is entitled to receive EUR 33,837 as solidarity contribution in relation to the transfer of the player from Club G to the Respondent.

12. On account of the above, in accordance with art. 21 in combination with Annexe 5 of the Regulations as well as the well-established jurisprudence of the Dispute Resolution Chamber, the Single Judge decided that the Respondent is liable to pay to the Claimant the amount of EUR 33,837 as solidarity contribution for the player, Player E.

13. Furthermore, and taking into consideration both the claim of the Claimant as well as art. 2 par. 1 of Annexe 5 of the Regulations, the DRC judge decided that the Respondent has to pay, in conformity with the longstanding practice of the DRC, interest at rate of 5% p.a. as follows:

a. 5% interest p.a. on the amount of EUR 23,686 as of 5 September 2016 until the date of effective payment;

b. 5% interest p.a. on the amount of EUR 10,151 as of 1 February 2017 until the date of effective payment.

14. 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 the proceedings before the Dispute Resolution Chamber relating to disputes regarding solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings and, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

15. In this respect, the Single Judge reiterated that the claim of the Claimant is partially accepted and established that the Respondent has to bear the costs of the current proceedings before FIFA.

16. Equally, the Single Judge noted that the amount in dispute to be taken into consideration in the present proceedings amounts to EUR 125,000 related to the claim of the Claimant. Therefore, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 15,000 (cf. table in Annexe A).

17. As a result, and taking into account that the Respondent failed to take stance in the procedure within the given time limit, the Single Judge determined the costs of the current proceedings to the amount of CHF 5,000, which shall be borne by the Respondent.

III. Decision of the Single Judge of the sub-committee of the DRC

1. The claim of the Claimant, Club A, is partially 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 33,837 plus 5% interest p.a. as follows:

a. 5% interest p.a. on the amount of EUR 23,686 as of 5 September 2016 until the date of effective payment;

b. 5% interest p.a. on the amount of EUR 10,151 as of 1 February 2017 until the date of effective payment.

3. In the event that the aforementioned amount plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

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

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittance is to be made and to notify the Single Judge of the sub-committee of the DRC of every payment received.

6. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent, within 30 days of notification of the present decision, to FIFA to the following bank account with reference to case no. XXXXXXX/XXX

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

Note relating to the motivated decision (legal remedy):

According to art. 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, 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

e-mail: info@tas-cas.org

For the Single Judge of the

sub-committee of the DRC:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl. CAS directives