F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2019-2020) – fifa.com – atto non ufficiale – Decision 26 August 2019

Decision of the

Single Judge of the sub-committee of the Dispute Resolution Chamber (DRC)

passed in Zurich, Switzerland, on 26 August 2019,

by Alexandra Gómez Bruinewoud (Uruguay),

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 (hereinafter: the player), born on 2 April 1991, was registered with its affiliated club, Club F (hereinafter: the Claimant) as from 1 January 2003 until 31 December 2004.

2. The football seasons in Country B during the period of time the player was registered with the Claimant started in January and ended in December of the same calendar year.

3. According to the information available in the Transfer Matching System (TMS), on 9 June 2018 the Club of Country B, Club G (hereinafter: Club G), concluded a transfer agreement with the Club of Country D, Club C (hereinafter: the Respondent), for the permanent transfer of the player to the Respondent for a transfer fee in the amount of USD 6,000,000, payable as follows:

a. USD 2,000,000 by no later than 15 June 2018;

b. USD 1,000,000 by no later than 10 July 2018;

c. USD 1,000,000 by no later than 30 October 2018;

d. USD 1,000,000 by no later than 30 January 2019;

e. USD 1,000,000 by no later than 30 April 2019.

4. Furthermore, the transfer agreement stipulated that the agreed amount is a sum of money that the Respondent will pay to Club G “libres de cualesquiera deducciones” [free translation: “free of any deductions”], and that the Respondent “acepta asumir y pagar exclusivamente cualquier pago proveniente o derivado de contribución y/o mecanismo de solidaridad y/o derechos de formación de acuerdo con el Reglamento sobre el Estatuto y Transferencia de Jugadores de la FIFA” [free translation: “the Respondent is responsible for any obligation arising from or derived from solidarity mechanism and/or training compensation in accordance with the FIFA Regulations on the Status and Transfer of Players”].

5. According to the information available in the TMS, the player was registered with the Respondent on 16 July 2018.

6. On 13 September 2018, the Claimant contacted FIFA claiming its proportion of the solidarity contribution in connection with the aforementioned transfer. In particular, the Claimant requested 10% of the 5% of the total transfer fee, plus 5% interest p.a. as from the due dates until the date of effective payment.

7. In its reply, the Respondent requested to reject the claim. In particular, it explained that, at the time of the notification of the claim, the last two instalments of the transfer fee were not due. Furthermore, the Respondent argued that it had not deducted the corresponding percentage of solidarity mechanism from the total amount of the transfer and consequently, the Respondent requested reimbursement of USD 30,000 by the former club of the player, i.e. Club G.

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 DRC (hereinafter also referred to as: Single Judge) analysed whether he was competent to deal with the matter at stake. In this respect, the Single Judge took note that the present matter was submitted to FIFA on 13 September 2018. Consequently, the Single Judge concluded that the 2018 edition of the Rules Governing the 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 the Dispute Resolution Chamber shall examine its jurisdiction in light of arts 22 to 24 of the Regulations on the Status and Transfer of Players (edition June 2019). 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 dispute relating to solidarity mechanism between clubs belonging to different associations handled through TMS.

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 confirmed that in accordance with art. 26 par. 1 and par. 2 of said Regulations (edition June 2019) and considering that the player was registered with the Respondent on 16 July 2018, the June 2018 edition of the Regulations on the Status and Transfer of Players (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 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. 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 TMS.

5. The Single Judge started by acknowledging that the Claimant is requesting the payment of 10% of the 5% of the total transfer fee, plus 5% interest p.a. as from the due dates until the date of effective payment, from the Respondent as solidarity contribution in connection with the international transfer of the professional player, Player E, from Club G to the Respondent.

6. In this regard, the Single Judge duly noted that, according to the relevant transfer agreement dated 9 June 2018, the player was transferred from Club G to the Respondent for transfer fee in the amount of USD 6,000,000, payable as follows: the amount of USD 2,000,000 by no later than 15 June 2018, the amount of USD 1,000,000 by no later than 10 July 2018, the amount of USD 1,000,000 no later than 30 October 2018, the amount of USD 1,000,000 by no later than 30 January 2019 and the amount of USD 1,000,000 by no later than 30 April 2019.

7. In continuation, the Single Judge took note that the Respondent, for its part, requested to reject the claim, considering that the payments of the last two instalments of the transfer fee were still not due. Furthermore, the Single Judge took note of the Respondent’s argument that it had not deducted the corresponding percentage of solidarity mechanism from the total amount of the transfer and consequently that the former club of the player, i.e. Club G, shall be liable for the payment of USD 30,000.

8. In this respect, the Single Judge observed that the transfer agreement clearly established that the agreed amount is a sum of money that the Respondent will pay to Club G free of any deductions and that the Respondent is responsible for any obligation arising from or derived from solidarity mechanism in accordance with the Regulations. Furthermore, the Single Judge took note that at the time of his decision, all instalments of the transfer agreement were already due.

9. Having established the above, the Single Judge emphasised that, as established in art. 21 in combination with Annexe 5 of the Regulations, 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 to be distributed by the new club as solidarity contribution to the club(s) involved in the training and education of the player in proportion to the number of years the player has been registered with the relevant clubs between the sporting seasons of his 12th and 23rd birthday.

10. Moreover, the Single Judge recalled that, according to the player passport issued by the Football Federation of Country B, the Claimant was involved in the training and education of the player.

11. On account of the above, the Single Judge decided that, in accordance with art. 21 in combination with Annexe 5 of the Regulations, the Respondent must pay the relevant proportion of the solidarity contribution to the Claimant.

12. This being established, the Single Judge referred to art. 1 of Annexe 5 of the Regulations, which provides the figures for the distribution of the solidarity contribution, according to the period of time during which the player was registered with the relevant club.

13. In this respect, the Single Judge recalled that, according to the player passport issued by the Football Federation of Country B, the player, born on 2 April 1991, was registered with the Claimant from 1 January 2003 until 31 December 2004.

14. 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 1 January 2003 until 31 December 2004, i.e. during the entire seasons of the player’s 12th and 13th, birthday. In terms of the percentage of the 5% solidarity contribution, the Single Judge calculated that, on a pro rata basis, this corresponds to 10% of the 5% of the total transfer compensation, as claimed by the Claimant.

15. In view of all the above and in accordance with art. 21 in combination with Annexe 5 of the Regulations, the Single Judge decided to accept the claim of the Claimant and concluded that the Respondent is liable to pay to the Claimant the amount of USD 30,000, as solidarity contribution in relation to the transfer of the player from Club G to the Respondent.

16. 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. on the amount of USD 15,000 as from 16 August 2018 until the date of effective payment;

b. on the amount of USD 5,000 as from 30 November 2018 until the date of effective payment;

c. on the amount of USD 5,000 as from 2 March 2019 until the date of effective payment;

d. on the amount of of USD 5,000 as from 31 May 2019 until the date of effective payment.

17. 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 DRC relating to disputes regarding training compensation and the solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated that 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.

18. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is USD 30,000, related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in Annexe A of the Procedural Rules).

19. As a result, considering the degree of success, the Single Judge determined the final costs of the current proceedings to the amount of CHF 5,000, which shall be paid by the Respondent.

20. Furthermore, taking into account the consideration under number II./3. above, the Single Judge 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.

21. In this regard, the Single Judge 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.

22. Therefore, bearing in mind the above, the Single Judge 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.

23. Finally, the Single Judge 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 sub-committee of the DRC

1. The claim of the Claimant, Club A, is accepted.

2. The Respondent, Club C, has to pay to the Claimant the amount of USD 30,000 plus interest as follows:

a) 5% p.a. on the amount of USD 15,000 as from 16 August 2018 until the date of effective payment;

b) 5% p.a. on the amount of USD 5,000 as from 30 November 2018 until the date of effective payment;

c) 5% p.a. on the amount of USD 5,000 as from 2 March 2019 until the date of effective payment;

d) 5% p.a. on the amount of USD 5,000 as from 31 May 2019 until the date of effective payment.

3. The Claimant is directed to inform the Respondent, immediately and directly, of the relevant bank account to which the Respondent must pay the amount mentioned under point 2. above.

4. The Respondent shall provide evidence of payment of the due amount in accordance with point 2 above to FIFA to the e-mail address psdfifa@fifa.org, duly translated, if need be, into one of the official FIFA languages (English, French, German, Spanish).

5. In the event that the amount due, in accordance with point 2. 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 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 (cf. art. 24bis of the Regulations on the Status and Transfer of Players).

6. The ban mentioned in point 5. above will be lifted immediately and prior to its complete serving, once the due amount is paid.

7. In the event that the aforementioned sum 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 FIFA’s Disciplinary Committee for consideration and a formal decision.

8. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Respondent within 45 days as from the date of notification of the present decision, to FIFA to the following bank account with reference to case nr. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

9. In the event that the aforementioned amount of costs is not paid within the stated time limit, the present matter shall be submitted to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

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