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 29 November 2019

Decision of the

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

passed on 29 November 2019,

by Roy Vermeer (The Netherlands),

Single Judge of the sub-committee of the DRC,

on the claim presented by the club,

CMS, Gabon

as Claimant

against the club,

EA Guingamp, France

as Respondent

regarding solidarity contribution in connection with the transfer

of the player Didier Ndong Ibrahim

I. Facts of the case

1. According to the player passport issued by the Federation Gabonaise de Football, the player, Didier Ndong Ibrahim (hereinafter: the player), born on 17 June 1994, was registered with the club CMS (hereinafter: the Claimant) as from 28 January 2006 until 4 September 2012.

2. The football seasons in Gabon during the period of time the player was registered with the Claimant started on 1 August and ended on 31 July of the next calendar year.

3. According to the information contained in the Transfer Matching System (TMS), the English club, Sunderland AFC, and the player signed a Settlement Agreement dated 10 October 2018, according to which the player had to pay to Sunderland AFC the amount of EUR 4,000,000 as “damages incurred by [Sunderland AFC] as a result of the termination of the Contract”.

4. Equally, according to the TMS, on 2 January 2019, Sunderland AFC, the player and the French club, EA Guingamp (hereinafter: the Respondent) signed an Addendum to the above-mentioned Settlement Agreement. In this regard the Addendum stipulates the following:

“[the player] recognized the rights of [Sunderland AFC] to receive the payment of €4,000,000 (four million euros) (the “Compensation Payment”), to be paid by any club for whom you might subsequently sign.”

5. Furthermore, Sunderland AFC and the Respondent agreed upon a variation of the Settlement Agreement as follows:

“In compensation for the transfer of your player registration, the Club shall receive from EAG [the Respondent]:

1.1 the payment of € 1,500,000 (one and a half million euros) payable by EAG to the Club as soon as practicable, and in any event no later than five working days following, the transfer of your registration;

1.2 a second payment of € 500,000 (five hundred thousand euro) payable by EAG to the Club on the earlier of (i) the date of your subsequent transfer from EAG to any subsequent club; and (ii) 31 July 2019;

1.3 a 30% share of any fee obtained by EAG for your player registration upon your transfer to any subsequent club. It is agreed that this sum shall be calculated as a percentage of any gross transfer fee less the sum of the two payments set out at clauses 1.1 and 1.2 above (and, for the avoidance of doubt, that no other deductions shall be permitted from the gross transfer fee prior to the calculation of such percentage share).

It is agreed that the Compensation Payment to be paid by EAG shall be capped at the sum of €4,500,000 (four million five hundred thousand euros).”

6. Equally, according to the TMS, the player was registered with the Respondent on 9 January 2019.

7. On 12 July 2019, the Claimant lodged a claim in front of FIFA, requesting its proportion of the solidarity contribution in connection with the transfer of the player from Sunderland AFC to the Respondent. In particular, the Claimant requested “2.42% of any compensation agreed upon and/or paid to the Former Club or any future payments (such as, but not limited to, bonus payments, buy option, sell-on clauses), plus 5% interest p.a. as from the due date, until the date of effective payment.”

8. In its reply dated 18 September 2019, the Respondent contested that the solidarity contribution is due since no transfer compensation was paid by the latter. The Respondent explained that the amount of EUR 2,000,000 was a payment that the latter performed on behalf of the player, as agreed between Sunderland AFC and Mr Didier Ndong Ibrahim in the Settlement Agreement.

9. On 30 September 2019, a proposal in accordance with Article 13 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber was sent out by the FIFA Administration. The proposed sum due by the Respondent amounted EUR 48,490, i.e. 48.49% of the due solidarity contribution.

10. On 14 October 2014, the Respondent rejected the proposal made by the FIFA Administration, referring to its reply dated 18 September 2019.

11. On 15 October 2019, the Claimant also rejected the proposal made by the FIFA Administration. The Claimant agreed with the percentage applied, nonetheless, it rejects the proposed amount. In this respect, the Claimant requested to consider a sell-on fee triggered by the transfer from the Respondent to Dijon FCO.

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 case at hand. 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 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 October 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 2018, June 2019, October 2019) and considering that the player was registered with the Respondent on 9 January 2019, 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 Transfer Matching System (TMS).

5. The Single Judge started by acknowledging that the Claimant is requesting the payment of “2.42% of any compensation agreed upon and/or paid to the Former Club or any future payments (such as, but not limited to, bonus payments, buy option, sell-on clauses), plus 5% interest p.a. as from the due date, until the date of effective payment”, from the Respondent as solidarity contribution in connection with the international transfer of the professional player, Didier Ndong Ibrahim, from Sunderland AFC.

6. Moreover, the Single Judge duly noted that, according to the relevant agreement dated 2 January 2019, the player was transferred from Sunderland AFC to the Respondent for the amount of EUR 2,000,000, payable as follows:

- EUR 1,500,000 “as soon as practicable, and in any event no later than five working days following, the transfer of your registration”;

- EUR 500,000 “on the earlier of (i) the date of your subsequent transfer from EAG to any subsequent club; and (ii) 31 July 2019”.

7. Furthermore, the Single Judge noted that the agreement foresaw the compensation for the transfer as follows: “30% share of any fee obtained by EAG for your player registration upon your transfer to any subsequent club. It is agreed that this sum shall be calculated as a percentage of any gross transfer fee less the sum of the two payments set out at clauses 1.1 and 1.2 above (and, for the avoidance of doubt, that no other deductions shall be permitted from the gross transfer fee prior to the calculation of such percentage share).”

8. In continuation, the Single Judge took note that the Respondent, for its part, contested the substance of the claim, as it deemed that no transfer compensation was paid. The Respondent explained that the amount of EUR 2,000,000 was a payment that the latter performed on behalf of the player, as agreed between Sunderland AFC and Mr Didier Ndong Ibrahim in the Settlement Agreement.

9. Therefore, the Single Judge concluded that the underlying issue in the present matter was to establish whether the ultimate payment of EUR 2,000,000, constituted a “compensation” for the purposes of the solidarity mechanism system.

10. In this regard, 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.

11. In view of the above, the Single Judge wished to emphasise that the reality and the substance of the transaction should prevail on discussions about forms or schemes of transfers.

12. Moreover, the Single Judge thought important to bear in mind, that, although formally speaking the player is bound to perform the payment for the early termination of the contract, i.c. as agreed upon in the Settlement Agreement, in reality most of the times, if not always, the amount is, as a matter of fact, not payable by a physical person. In this regard, the Single Judge referred to the pertinent Settlement Agreement, which stipulated that the player had to pay the amount of EUR 4,000,000.

13. Considering the facts of the current case, the Single Judge highlighted that the Respondent explicitly agreed upon a variation of the Settlement Agreement between the player and Sunderland AFC, renegotiating the transfer amount through the Addendum of the Settlement Agreement.

14. Consequently, and in view of the above paragraphs, the Single Judge decided that the execution of the Addendum has to be considered a compensation in the sense of art. 1 of Annexe 5 of the Regulations. This is also in line with the spirit and the ratio of the Regulations, which basically provide that training clubs are entitled to a share of the solidarity contribution for any compensation paid by the new club to the former club. Therefore, the Single Judge concluded that the Respondent has to pay solidarity contribution to the Claimant, basing the compensation on the Addendum of the Settlement Agreement.

15. In this context, the Single Judge acknowledged that the Claimant also requested to consider a sell-on fee triggered by an alleged transfer from the Respondent to Dijon FCO.

16. Bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single Judge decided that the Claimant did not provide sufficient evidence with regard to alleged transfer. In particular, the Claimant did not provide satisfying information that the involved clubs agreed upon a transfer fee, information which is moreover not available in the TMS, due to the fact that said alleged transfer was a domestic transfer between two French clubs.

17. In this regard, having confirmed the above-mentioned obligation incumbent on the Respondent, the Single Judge went on to establish the proper calculation of the relevant proportion of the solidarity contribution due to the Claimant, basing the compensation on the amount of EUR 2,000,000.

18. Having said that, the Single Judge recalled that, according to the player passport issued by the Federation Gabonaise de Football, the Claimant was involved in the training and education of the player.

19. 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.

20. Having established the above, 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.

21. In this respect, the Single Judge recalled that, according to the player passport issued by Federation Gabonaise de Football, the player, born on 17 June 1994, was registered with the Claimant as from 28 January 2006 until 4 September 2012.

22. 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 28 January 2006 until 4 September 2012, i.e. during 185 days of the season of the player’s 12th birthday, during 365 days of the seasons of the player’s 13th - 18th birthday and during 35 days 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 48.49% of the 5% of the total transfer compensation.

23. Therefore, the Single Judge concluded that the Claimant is entitled to receive EUR 48,490, plus 5% interest p.a. as of the due dates, as solidarity contribution in relation to the transfer of the player from Sunderland AFC to the Respondent.

24. 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 Single Judge decided that the Respondent has to pay, in conformity with the longstanding jurisdiction, interest at the rate of 5% as follows:

a. on the amount of EUR 36,247.50 as of 13 February 2019;

b. on the amount of EUR 12,082.50 as of 30 August 2019.

25. On account of the above, in accordance with art. 21 in combination with Annexe 5 of the Regulations, the Single Judge decided that the Respondent is liable to pay to the Claimant the amount of EUR 48,490, plus 5% interest p.a. as of the abovementioned due dates, as solidarity contribution for the player, Didier Ndong Ibrahim.

26. 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.

27. In this regard, the Chamber established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the club. More in particular, the Single Judge pointed out that, against clubs, the sanction shall consist in a ban 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.

28. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the club does not pay the amount due to the player within 45 days as from the moment in which the player, following the notification of the present decision, communicates the relevant bank details to the club, 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 club in accordance with art. 24bis par. 2 and 4 of the Regulations.

29. Finally, the Single Judge recalled that the above-mentioned sanction 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.

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 the amount to be taken into consideration in the present proceedings is EUR 48,490, related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).

32. As a result, considering the specificities of the claim, the Single Judge determined the final costs of the current proceedings to the amount of CHF 5,000, which shall be paid by both of the parties as follows: the amount of CHF 2,000 by the Claimant and the amount of CHF 3,000 by the Respondent to FIFA.

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

1. The claim of the Claimant, CMS, is accepted.

2. The Respondent, EA Guingamp, has to pay to the Claimant the amount of EUR 48,330, plus 5% interest p.a. until the date of effective payment as follows:

a. 5% p.a. as of 13 February 2019 on the amount of EUR 36,247.50;

b. 5% p.a. as of 30 August 2019 on the amount of EUR 12,082.50.

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 1. above.

4. The Respondent shall provide evidence of payment of the due amount in accordance with point 1. 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, plus interest in accordance with point 1. 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 plus interest 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, within 45 days of notification of the present decision, as follows:

a. The amount of CHF 2,000 has to be paid by the Claimant.

b. The amount of CHF 3,000 has to be paid by the Respondent.

c. The mentioned amounts in 8.a. and 8.b. have to be paid to FIFA to the following bank account with reference to case no. TMS 4440:

UBS Zurich Account number 366.677.01U (FIFA Players’ Status) Clearing number 230 IBAN: CH 27 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, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

*****

Note related to the publication:

The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC. Where such decisions contain confidential information, FIFA may decide, at the request of a party within five days of the notification of the motivated decision, to publish an anonymised or a redacted version (cf. article 20 of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber).

Note related to the appeal procedure:

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. 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.

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

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