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 10 December 2019

Decision of the

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

passed in Zurich, Switzerland, on 10 December 2019,

by Alexandra Gómez Bruinewoud (Uruguay and The Netherlands),

Single Judge of the sub-committee of the DRC,

on the claim presented by the club,

Nania FC, Ghana

as Claimant

against the club,

West Ham United FC, England

as Respondent

regarding solidarity contribution in connection with the transfer

of the player Andre Morgan Rami Ayew

I. Facts of the case

1. According to the player passport issued by the Ghana Football Association, on 25 August 2018 (hereinafter: the 1st player passport) the player, Andre Morgan Rami Ayew (hereinafter: the player), born on 17 December 1989, was registered with its affiliated club, Nania FC (hereinafter: the Claimant or Nania FC) as from 1 August 2003 until 31 July 2006.

2. The football seasons in Ghana during the period of time the player was registered with the Claimant ran as from 1 August until 31 July.

3. According to the information available in the Transfer Matching System (TMS), on 6 August 2016 the Welsh club, Swansea City FC (hereinafter: Swansea City FC), concluded a transfer agreement with the English club, West Ham United FC (hereinafter: the Respondent or West Ham United FC), for the permanent transfer of the player to the Respondent for a transfer fee in the amount of GPB 20,000,000, payable as follows:

a) USD 8,000,000 “upon completion of the transfer and registration of the Player”, i.e. on 9 August 2016;

b) USD 2,000,000 payable on 16 January 2017;

c) USD 4,000,000 payable on 15 August 2017;

d) USD 4,000,000 payable on 15 August 2018;

e) USD 2,000,000 payable on 30 June 2019.

4. Furthermore, the transfer agreement stipulated that the agreed amount is a sum of money that “is subject to the deduction of Solidarity Contribution in favour of the former training clubs of the Player […]. Consequently, the relevant solidarity Contribution from the Transfer Compensation Fee shall be deducted by West Ham United from the payments provided under [point I.3 above]”.

5. According to the information available in the TMS, the player was registered with the Respondent on 9 August 2016.

6. On 5 September 2018, the Claimant contacted FIFA claiming its proportion of the solidarity contribution in connection with the aforementioned transfer. In particular, the Claimant requested 20% 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 Claimant’s claim. First of all, it considered that “Nania’s claim was out of time as two years had passed since the registration of the Player (8 August 2016) and prior to the e-mail of 29th August 2018 we had received no prior correspondence”.

8. Secondly, in contradiction with the content of the 1st player passport, the Respondent provided the copy of a further player passport issued by the French Football Federation and sustained that “[according to] the information included on the FIFA Player Passport provided by the [French Football Federation], the Player was registered with Olympique de Marseille from 23rd August 2004 and consequently Solidarity contribution had already been paid to them”. In this context, the Respondent further maintained that “a large part of the claim from Nania FC was incorrect as the registration history provided by the Ghana FA overlapped with the registration history provided by the [French Football Federation] and included periods for which payment had already been made”.

9. In this context, in order to clarify the situation and determine the complete registration history of the player, the Respondent held having requested the Ghana Football Association for a clarification. As per the Respondent, the Ghana Football Association provided it with “a further version of the Player Passport”, dated 18 December 2018 (hereinafter: the 2nd player passport), in which it appears that the player was registered with Nania FC as from 1 August 2003 until 31 July 2004.

10. In view of the discrepancies between the two player passports issued by the Ghana Football Association and the French Football Federation, FIFA requested the Ghana Football Association for a clarification. On 18 April 2019, the Ghana Football Association provided a copy of the 2nd player passport, in which it appeared that the player had been registered with Nania FC as from 1 August 2003 until 31 July 2004, and explained that “the attached player passport is the correct player passport, this overwrite the other one which has some discrepancies”.

11. In its second submission, on 9 May 2019, the Claimant referred to the 2nd player passport and amended its claim holding that the player had been registered in its club as from 1 August 2003 until 31 July 2004. Consequently, the Claimant adjusted its request to “a percentage of 0.25% (or 5% of the solidarity contribution)”.

12. Furthermore, the Claimant sustained that “as the Respondent insisted in the erroneous notion that the Claimant’s entitlement was time-barred”, it “was left with no option but to present the case before the DRC”.

13. In its response to the amended claim, the Respondent firstly stated that taking into account that the player was registered with it on 9 August 2016, and considering that the claim of the Claimant was submitted to FIFA on 5 September 2018, more than two years had elapsed. Thus, as per the Respondent, the claim of the Claimant was prescribed.

14. In continuation, the Respondent highlighted that the Ghana Football Association had allegedly provided the “correct version” of the player passport, the 2nd player passport, but “there was no explanation offered as to why the discrepancies included in the previous version had been overridden”.

15. Having said this, the Respondent requested that in the event the Single Judge does not reject the claim because of its prescription, the Claimant’s requests shall be rejected partially “given the uncertainty surrounding [of] the claim”. In this context, the Respondent requested not to award interest on any sum due.

16. On 21 October 2019, pursuant to article 13 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber, and the FIFA Circular 1689, the FIFA secretariat submitted a proposal to the parties. The proposed amount to be paid by the Respondent to the Claimant was “GBP 50,000.00 (5% of the due solidarity contribution) plus 5% interest p.a. as of 30 days of the due date of each instalment”.

17. The Claimant, for its part, accepted the above-mentioned proposal.

18. However, the Respondent, referring to the content of its previous submissions, contested the Claimant’s allegations and rejected the proposal.

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 she 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 5 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 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 Single Judge is competent to decide on the present dispute relating to solidarity mechanism between clubs belonging to different associations handled through TMS.

3. At this point, the Single Judge stated that prior to deliberating on the substance of the matter, she must verify whether the competent FIFA body would be able to deal with the present affair or not for formal reasons. In particular, the Single Judge took note of the formal objection of the Respondent, according to which the Claimant’s claim would be prescribed, since the player was registered with the Respondent on 9 August 2016, and the claim of the Claimant was submitted to FIFA on 5 September 2018.

4. In this context, the Chamber referred to art. 25 par. 5 of the Regulations, in connection with the Procedural Rules, which stipulate that the decision making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the facts leading to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

5. Subsequently, the Single Judge emphasized that according to art. 2 par. 1 of Annex 5 to the Regulations the new club shall pay the solidarity contribution to the training club(s) pursuant to the above provisions no later than 30 days after the player’s registration or, in case of contingent payments, 30 days after the date of such payments.

6. In this regard, the Single Judge observed that the Claimant’s possible claim for solidarity contribution against the Respondent arose on the thirty-first day after the player was registered for the Respondent. In other words, until the thirtieth day after the registration of a player for his new club at the new association, no event giving rise to a dispute would have occurred and, consequently, no claim could have arisen since until that point in time the player’s new club would still have possibility to fulfil its obligations as provided by the relevant provisions of the Regulations.

7. On account of the above, the Chamber came to the conclusion that the event giving rise to the dispute occurred on 9 September 2016, i.e. 31 days after the registration of the player for The Football Association, reason for which the Claimant’s claim cannot be declared barred by the statute of limitations in application of art. 25 par. 5 of the Regulations, since the claim was lodged on 5 September 2018, thus within the time limit of 2 years, which elapsed on 9 September 2018.

8. Having established that the claim of the Claimant is admissible, 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 2020) and considering that the player was registered with the Respondent on 9 August 2016, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

9. 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 she will refer only to the facts, arguments and documentary evidence, which she 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.

10. The Single Judge started by acknowledging that the Claimant is requesting the payment of 5% of the 5% of the total transfer fee, from the Respondent as solidarity contribution in connection with the international transfer of the professional player, Andre Morgan Rami Ayew, from Swansea City FC to the Respondent.

11. In this regard, the Single Judge duly noted that, according to the relevant transfer agreement dated 6 August 2016, the player was transferred from Swansea City to the Respondent for transfer fee in the amount of GBP 20,000,000, payable as follows: (i) the amount of GBP 8,000,000 by no later than 9 August 2016; (ii) the amount of GBP 2,000,000 by no later than 16 January 2017; (iii) the amount of GBP 4,000,000 by no later than 15 August 2017; (iv) the amount of GBP 4,000,000 by no later than 15 August 2018; (v) the amount of GBP 2,000,000 by no later than 30 June 2019.

12. In continuation, the Single Judge firstly took note of the fact that the Claimant held that it had trained the player between 1 August 2003 and 31 July 2006 and, in support of its allegations, submitted a copy of the 1st player passport, from which it appeared that the player had been registered with the Claimant during the aforementioned period.

13. Equally, the Single Judge noted that the Respondent argued that the aforementioned player passport dated 25 August 2018 “may not be genuine” and submitted a copy of the player passport “which [it deemed] to be correct”, dated 13 September 2016 and issued by the French Football Federation, from which it appeared that the player had been registered with Olympique de Marseille as from 23 August 2004.

14. In this framework, the Single Judge recalled that the Ghana Football Association, after being asked for a clarification with regard to the registration dates of the player, confirmed that the player, born on 17 December 1989, was registered with Nania FC as from 1 August 2003 until 31 July 2004.

15. Further to that, the Single Judge equally observed that the Claimant, taking into account the content of the 2nd player passport, amended its claim and concluded that it was entitled to receive solidarity contribution for the 2003/2004 season only.

16. With all the foregoing in mind, the Single Judge established that the main issue at stake is determining as to whether the player passport issued by the French Football Federation and the 2nd player passport were in contradiction or not.

17. Having analysed the content of the two aforementioned player passports, the Single Judge firstly took note of the fact that the player passport issued by the French Football Federation does not specify the player’s registration history as from 2001 until 23 August 2004. In particular, said player passport indicated that the club is “Inconnu” (in English: “Unknown”) until the season of the player’s 15th birthday, i.e. 2004/2005 season.

18. Furthermore, the Single Judge noticed that there were no contradictions between the two player passports. Having recalled the aforementioned, and from a strictly chronological point of view, the Single Judge saw no reason to question the Claimant’s allegation that the player was registered with Nania FC as from 1 August 2003 until 31 July 2004 and, subsequently, being transferred to Olympique de Marseille as from 23 August 2004.

19. Taking into account all the foregoing and particularly after determining that the 2nd player passport does not contradict the content of the player passport provided by the French Football Association, the Single Judge decided that the player passport issued by the Ghana Football Association on 18 December 2018 is the pertinent player passport it shall take into account when establishing the registration details of the player.

20. Consequently, and considering the claim of the Claimant, as well as the information provided by the parties and the Ghana Football Association, the Single Judge established that the relevant period of registration of the player with Nania FC which has to be taken into account for the calculation of solidarity contribution, is the period as from 1 August 2003 until 31 July 2004, i.e. a total of 12 months.

21. 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.

22. Moreover, the Single Judge recalled that, according to the 2nd player passport, the Claimant was involved in the training and education of the player.

23. 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.

24. 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.

25. In this respect, the Single Judge recalled that, according to the player passport issued by the Ghana Football Association on 18 December 2018, the player, born on 17 December 1989, was registered with the Claimant from 1 August 2003 until 31 July 2004.

26. 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 August 2003 until 31 July 2004, i.e. during the entire season of the player’s 14th birthday. In terms of the percentage of the 5% solidarity contribution, the Single Judge calculated that, on a pro rata basis, this corresponds to 5% of the 5% of the total transfer compensation, as claimed by the Claimant.

27. 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 GBP 50,000, as solidarity contribution in relation to the transfer of the player from Swansea City FC to the Respondent.

28. Furthermore, and taking into consideration 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.

29. Notwithstanding the above, considering the particularities of the case and its factual difficulties, the Single Judge decided to award 5% interest p.a. on the amount of GBP 50,000 as from the notification of the decision, i.e. 13 December 2019, until the date of effective payment.

30. 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.

31. In respect of the above, the Single Judge held that, due to the peculiar circumstances of the matter at hand, and taking into account the cooperation of the Respondent finding out the complete registration history of the player, the Single Judge determined that no final costs should be allocated on the Respondent.

*****

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

1. The claim of the Claimant, Nania FC, is accepted.

2. The Respondent, West Ham United FC, has to pay to the Claimant, within 30 days as from the date of notification of this decision, the amount of GBP 50'000, plus 5% interest p.a. as of the notification of this decision.

3. In the event that the aforementioned sum 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. 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.

*****

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