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 20 May 2020

Decision of the

Dispute Resolution Chamber

(

passed on 20 May 2020,

in the following composition:

Geoff Thompson (England), Chairman

Jerome Perlemuter (France), member

Angela Collins (Australia), member

on the claim presented by the club,

CD Gallegol SAS, Colombia

as Claimant

against the club,

Juventus FC, Italy

as Respondent

regarding solidarity contribution in connection with the transfer

of the player Juan Guillermo Cuadrado Bello

I. Facts of the case

1. According to the player passport issued by the Football Association of Colombia (hereinafter: the Colombian FA) on 19 February 2015, the player, Juan Guillermo Cuadrado Bello (hereinafter: the player), born on 26 May 1988, was registered with the Colombian clubs, PARMA F.C. and JAIKA BELENCITO (hereinafter jointly referred as the absorbed clubs), as from 1 January 2003 until 31 December 2003 and as from 1 January 2004 until 31 December 2004, respectively.

2. According to the information contained in the aforementioned player passport, the season in Colombia follows the calendar year, i.e. it starts in January and ends in December of the same year.

3. By means of a fax dated 13 September 2017, CD Gallegol SAS (hereinafter: the Claimant) contacted FIFA claiming its proportion of the solidarity contribution in connection with the transfer of the player from the English club, Chelsea FC, to the Italian club, Juventus FC.

4. The Claimant first of all explained that, on 20 October 2015, on the occasion of the merger by absorption approved by the Chamber of Commerce of Medellín, it acquired the assets of the aforementioned Colombian clubs, PARMA F.C. and JAIKA BELENCITO. In support of its statements, the Claimant provided a copy of the “Certificate of existence and representation” (free translation from Spanish), according to which the Claimant had succeeded the absorbed clubs in their rights and obligations.

5. In view of the above, the Claimant maintained that it was to be considered as “the continuator” (free translation from Spanish) of the absorbed clubs’ rights and, as such, the holder of the rights derived from the player’s training.

6. On 6 October 2017, pursuant to Annexe 6 of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations), our services informed the Claimant that, as from 1 October 2015, all the claims for solidarity contribution must be submitted and managed through the Transfer Matching System (hereinafter: the TMS). Having said this, our services also pointed out that the claims should be entered in the TMS by the club holding a TMS account or, in the case of a club without a TMS account, by the association concerned.

7. On 10 October 2017, the Colombian FA informed our services that, according to the Colombian sports law, the simplified joint-stock companies (SAS) could neither get sports recognition nor join any sports league. Based on such statement, the Colombian FA further sustained that, as the simplified joint-stock companies were not part of the national sports system, the absorbed clubs were not entitled to receive benefits of the associated football, namely solidarity contribution and/or training compensation.

8. In continuation, the Colombian FA maintained that the absorbed clubs appeared in the player passport due to the fact that, at the beginning, the registration system that operated in the Colombian FA, i.e. “the COMET System” (free translation from Spanish), included all the clubs without distinction, regardless of the affiliated or non-affiliated (guests) condition. Therefore, according to the Colombian FA, the fact that non-affiliated clubs appeared in the player passport did not implied, per se, the right of those clubs to claim solidarity contribution.

9. Having said this, the Colombian FA further pointed out that PARMA F.C. and JAIKA BELENCITO were never affiliated to the Colombian FA and, as such, it reiterated that non-members of the associated football were excluded from the distribution of solidarity contribution.

10. Lastly, the Colombian FA stated that it would upload the Claimant’s claim in the TMS, if the latter could sufficiently prove that the absorbed clubs had been duly affiliated. In this respect, according to the information provided, on 25 September 2017, the Claimant was allegedly requested by the Colombian FA to provide the relevant documents.

11. On 30 October 2017, the Colombian FA sent a further correspondence indicating that the Claimant had not completed nor remedied the deficiencies of its claim form, as it could not provide evidences that the absorbed clubs were duly affiliated to the Colombian FA during the player’s training. In this context, the Colombian FA pointed out that the Claimant was unable to prove that the absorbed clubs met the fundamental requirement of being part of the associated football.

12. Subsequently, by means of a further fax dated 1 December 2017, the Claimant sent another correspondence informing FIFA that the Colombian FA, on 19 October 2017, refused to enter its claim via TMS, allegedly arguing that the Claimant lacked legitimacy to lodge the relevant claim.

13. Bearing in mind the foregoing, on 1 February 2018, FIFA requested the Colombian FA to confirm whether the Claimant was affiliated to the Colombian FA and as to whether or not said club was participating in any of the competitions organised under the auspices of the Colombian FA.

14. On 14 February 2018, as regards the affiliation of the Claimant, the Colombian FA indicated that the Claimant, CD Gallegol SAS, was affiliated to the football league of Antioquia. In this regard, the Colombian FA attached the copy of a document issued by the football league of Antioquia on 16 August 2017, according to which the Claimant was affiliated and participating as of 16 October 2014.

15. Notwithstanding the above, with regard to the participation of the club, the Colombian FA underlined that the football league of Antioquia did not confirm whether, at that time, i.e. February 2018, the Claimant was still participating or not.

16. On 9 March 2018, FIFA informed the Claimant that Players’ Status was not in the position to entertain its request, since FIFA could neither instruct the Colombian FA to enter the claim of one of its affiliates in TMS nor create a TMS account for the Claimant in order for it to enter its claim directly in TMS.

17. Subsequently, on 5 March 2019, the Colombian FA lodged the claim via TMS on behalf of the Claimant.

18. The Claimant reiterated its initial arguments, maintaining that, as “the continuator” of the absorbed clubs, it was entitled to receive the proportion of solidarity contribution in connection with the transfer of the player from Chelsea FC to Juventus FC. In support of its statements, and in order to prove its entitlement to receive solidarity contribution for the period in which the player was registered with the absorbed clubs, the Claimant referred to the following documents:

a) The document according to which the football league of Antioquia confirmed that the Claimant (CD Gallegol SAS) was affiliated and participating as of 16 October 2014 (cf. point I.14. above);

b) The player passport issued by the Colombian FA on 19 February 2015 (cf. point I.1. above);

c) The “Certificate of existence and representation” (cf. point I.4. above).

19. According to the Claimant, as the legal and sporting successor of the absorbed clubs, it claimed 0.75% of the total transfer fee (15% of the 5% of the solidarity contribution), as follows:

- 0.25% of the total transfer fee, corresponding to the period as from 1 January 2003 until 31 December 2003 (season 2003 - 15th birthday);

- 0.5% of the total transfer fee, corresponding to the period as from 1 January 2004 until 31 December 2004 (season 2004 - 16th birthday).

20. Despite having uploaded the Claimant’s claim, the Colombian FA wished to point out, once again, that it did not agree with the Claimant’s allegations. As per the Colombian FA, the Claimant did not provide any evidence that the absorbed clubs, i.e. PARMA F.C. and JAIKA BELENCITO, were duly affiliated at the time of the player’s training, i.e. as from 1 January 2003 until 31 December 2004.

21. In this context, the Colombian FA reiterated that the previous version of the “COMET System” used to include all the clubs, regardless of their condition of affiliated or non-affiliated (guests). For this reason, the Colombian FA highlighted that, even though the absorbed clubs appeared in the player passport dated 19 February 2015, it did not necessarily mean that those clubs could claim solidarity contribution.

22. In this regard, the Colombian FA sustained that the COMET System had been subsequently amended, avoiding the inclusion of non-affiliated (guests) clubs in the player passport.

23. Having said this, the Colombian FA pointed out that the evidences provided by the Claimant showed that the absorbed clubs had been participating as guests, not as members. Consequently, as per the Colombian FA, although the absorbed clubs participated in tournaments organized by the football league of Antioquia, “they had no seat as members with the right to speak and vote in the General Assembly of Affiliates” (free translation from Spanish).

24. On the other hand, the Colombian FA stressed, once again, that the clubs constituted as simplified joint-stock companies (SAS) could not get sports recognition nor join a sports league and, as a consequence thereof, the Colombian FA maintained that the Claimant was not entitled to receive solidarity contribution. In support of its statements, the Colombian FA uploaded a copy of a document issued by the Administrative Department of Sport, Recreation, Physical Activity and the Use of Free Time (hereinafter: COLDEPORTES), dated 14 January 2016, according to which the clubs constituted as simplified joint-stock companies (SAS) can neither be affiliated to a sports league nor be part of the national sports system.

25. Lastly, the Colombian FA further provided a copy of a document issued by the football league of Antioquia on 20 March 2015, according to which the absorbed clubs were not affiliated.

26. In reply to the Claimant’s claim, the Respondent, for its part, held that it had “already duly and properly paid the solidarity contribution due in connection with the transfer of the player Juan Guillermo Cuadrado Bello from Chelsea FC, England. Consequently, Gallegol’s claim is totally ungrounded”. In this context, the Respondent provided a copy of the payments made in favour of the clubs that appeared in the player passport issued by the Colombian FA on 23 September 2015.

27. In this regard, the Respondent uploaded a copy of the player passport issued by the Colombian FA on 23 September 2015, according to which it appeared that the player was trained for the first time with the Colombian club, LEONES F.C., as from 01 January 2005.

28. In addition, the Respondent further stated the following:

“a) Parma F.C. S.A.S. and Ja&Ka Belencito S.A.S. are not affiliated to the [the Colombian FA];

b) no evidences have been given to [the Colombian FA] with respect to the activities performed by the two Clubs to train the player;

c) pursuant to the applicable [Colombian] law, Gallegol, Parma F.C. S.A.S. and Ja&Ka Belencito S.A.S. are not entitled to act as sport entities nor to be affiliated to a Liga Deportiva […]”.

29. Lastly, in support of its argumentations, the Respondent provided a letter dated 2 October 2015, by means of which the Colombian FA confirmed that the absorbed clubs were not part of the organized football.

II. Considerations of the Dispute Resolution Chamber (DRC)

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the DRC or the Chamber) analysed whether it was competent to deal with the case at hand. In this respect, it took note of the fact that the present matter was submitted to FIFA on 5 March 2019 and decided on 20 May 2020. Taking into account the wording of art. 21 of the 2019 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 DRC 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 2020). 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 Chamber is competent to decide on the present dispute relating to solidarity mechanism between a Colombian club and an Italian club.

3. Furthermore, and taking into consideration that the player was registered with the Respondent on 9 September 2016, the DRC analysed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that in accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and Transfer of Players (edition 2020), the 2016 version of the said Regulations (hereinafter: the Regulations) is applicable to the present matter as to the substance.

4. The competence of the Chamber and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the members of the Chamber started by acknowledging all the aforementioned facts as well as the arguments and the documentation submitted by the parties. The DRC, however, emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand. In particular, the Chamber 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 Regulations, any documentation or evidence generated or contained in the TMS.

5. Having established the above, the Chamber started by acknowledging that the Claimant was claiming solidarity contribution from the Respondent in connection with the transfer of the player to the Respondent.

6. With due considerations to the facts of the present case, the Chamber first of all turned its attention to the question as to whether or not the Claimant, based on the FIFA Regulations, is entitled to receive solidarity contribution from the Respondent in connection with the transfer of the player from the English club, Chelsea FC, to the Respondent.

7. First, the members of the Chamber went on to examine the Claimant’s alleged succession of the rights and obligations of the absorbed clubs. In this respect, after having analysed the “Certificate of existence and representation” provided by the Claimant (cf. point I.4 above), the DRC concluded that the Claimant had sufficiently proved that it was to be considered as the legal and sporting successor of the absorbed clubs, i.e. PARMA F.C. and JAIKA BELENCITO.

8. In continuation, the Chamber referred to art. 1 of the FIFA Regulations, in particular, to its par. 1 which stipulates that the FIFA Regulations “lay down global and binding rules concerning the status of players, their eligibility to participate in organised football, and their transfer between clubs belonging to different associations”.

9. In respect to the above, the members of the Chamber observed that the parties provided documentation that evidenced that the absorbed clubs i.e. PARMA FC and JAIKA BELENCITO, had been participating as guests.

10. Notwithstanding the above, and in light of the arguments put forward by the parties, the DRC wished to emphasize that the Claimant was unable to prove that the absorbed clubs, at some point, were duly affiliated to the Colombian FA or any sports league.

11. In this respect, the Chamber observed that it had to examine whether the absorbed clubs, i.e. PARMA F.C. and JAIKA BELENCITO, clubs not affiliated to the Colombian FA or any sports league, would had been entitled to receive solidarity contribution from the Respondent in connection with the transfer of the player from Chelsea FC to the Respondent.

12. The Chamber was of the firm and unanimous opinion that this could not be the case. Indeed, establishing that the rules and regulations of an association would also apply to an entity not affiliated to such association would clearly be incompatible with the general principles of association law, in particular, with the principle of freedom of association which established that every association can, in principle, accept or refuse any applicant for membership. In the particular matter at hand, it had been the Colombian FA’s stance to only accept those clubs as members that are participating in the Colombian league, i.e. in the leagues organised under the auspices of the Colombian FA, and, thus, to limit the application of its regulations and statutes to that particular scope. Taking into consideration that the Claimant could not sufficiently prove that the absorbed clubs were members of the Colombian FA, the Chamber saw no legal basis to uphold the assumption that regulations issued by an association were applicable to legal entities that were not affiliated to the relevant association.

13. What is more, the members of the Chamber wished to emphasize that, according to the content of the regulations and statutes of the Colombian FA, it was evident that the Colombian FA had excluded non-affiliated clubs from its solidarity mechanism system.

14. On account of the above, the Chamber deemed that the Claimant could not derive an entitlement to solidarity contribution from the Colombian FA Regulations. In view of the foregoing, the members of the Chamber decided to reject the Claimant’s claim for solidarity contribution based on the Colombian FA Regulations.

15. Lastly, the DRC 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.

16. Considering the particularities of the present matter, the members of the Chamber determined the final amount of costs of the current proceedings were to be limited to the amount of CHF 1,000.

17. In view of all of the above, the Dispute Resolution Chamber concluded that the amount of CHF 1,000 had to be paid by the Claimant to cover the costs of the present proceedings.

*****

III. Decision of the Dispute Resolution Chamber (DRC)

1. The claim of the Claimant, CD Gallegol SAS, is rejected.

2. The final costs of the proceedings in the amount of CHF 1,000 are to be paid by the Claimant to FIFA to the following bank account with reference to case no. TMS 3963:

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 (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 Dispute Resolution Chamber:

_______________________

Emilio García Silvero

Chief Legal Officer