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 28 August 2019
Decision of the
Single Judge of the sub-committee of the Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 28 August 2019,
by Roy Vermeer (the Netherlands),
Single Judge of the sub-committee of the DRC,
on a matter between the club,
Club A, Country B
as Claimant
against the club,
Club C, Country B
as Respondent
and the club
Club D(formerly known as Club D), Country E
as intervening party
regarding solidarity contribution in connection with the transfer
of the player F
I. Facts of the case
1. According to the player passport issued by the Football Confederation of Country B, the player, player F (hereinafter: the player), born on 26 September 1991, was registered with its affiliated club, club A (hereinafter: the Claimant) as from 10 April 2008 until 14 August 2014.
2. The sporting 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 2 January 2016 the club of Country E, Club D concluded a transfer agreement with the club of Country B, Club C (hereinafter: the Respondent), for the transfer of the player to the Respondent. Clause 1.1. of the Transfer Agreement stipulated the following: “In consideration of the transfer of such registration on definitive basis, club C agrees to pay to club D the total sum of USD 1,050,000 […]. This amount should be paid to club D in three instalments: (i) USD 400,0000 […] in 20 January 2016; (ii) USD 350,0000 […] in 20 August 2016 and; (iii) USD 300,0000 […] in 20 March 2017”.
4. According to the information available in the TMS, the player was registered with the Respondent on 29 January 2016.
5. On 13 June 2018, the Claimant contacted FIFA claiming its proportion of the solidarity contribution in connection with the aforementioned transfer. In particular, the Claimant requested 53.5068% of the 5% of the total transfer fee, plus 5% interest p.a. as from the due dates until the date of effective payment.
6. In reply, the Respondent recognised that it has to pay to the Claimant the amount due as solidarity contribution, but further held that, in accordance with FIFA jurisprudence, club D must reimburse to the Respondent the total amount due as solidarity contribution.
7. After having been invited to intervene in the proceedings, club D referred to the transfer agreement and held that no mention is made therein as regards solidarity contribution. As per club D, the transfer amount stipulated in the transfer agreement is a net amount, and the Respondent is obliged to pay the solidarity contribution to the player’s former clubs.
8. In its replica, the Claimant emphasised that none of the clubs has contested that it has effectively participated in the training of the player, and that, consequently, it is entitled to the solidarity contribution.
9. In its duplica, the Respondent firstly held that the claim of solidarity contribution on the first instalment of the transfer fee, which was due on 20 January 2016, is time barred. Subsequently, the Respondent stressed that “it is irrelevant whether the Transfer Agreement establishes if the transfer fee is (or not) net since such designation clearly and exclusively refers to the exemption of taxes and taxes only”. In this context, the Respondent argued that it “mistakenly forgot to discount the percentage due as solidarity compensation from the transfer fee”. Finally, the Respondent stated that it will immediately perform its obligations towards the Claimant, “as soon as [club D] refunds the total sum due as solidarity contribution”.
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 June 2018. Consequently, the Single Judge concluded that the June 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 29 January 2016, the 2015 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 requested 53.5068% of the 5% of the total transfer fee, plus 5% interest p.a. as from the due dates, from the Respondent as solidarity contribution in connection with the international transfer of the professional player, Player F, from club D.
6. Moreover, the Single Judge duly noted, that according to the relevant transfer agreement dated 2 January 2016, the player was transferred from club D to the Respondent for the amount of USD 1,050,000, payable in three instalments as follows: the amount of USD 400,000 on 20 January 2016, the amount of USD 350,0000 on 20 August 2016 and the amount of USD 300,0000 on 20 March 2017.
7. In continuation, 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.
8. In continuation, the Single Judge duly noted that Region G asserted having paid the entire amount of the transfer fee, i.e. USD 1,050,000, agreed upon as transfer compensation to club D. In other words, the Respondent omitted to deduct 5% of the relevant transfer compensation relating to the solidarity mechanism. Furthermore, the Single Judge noted that the Respondent recognised that it has to pay the Claimant the amount due as solidarity contribution, but further held that, in accordance with FIFA Jurisprudence, club D shall first reimburse the amount it omitted to deduct.
9. Moreover, the Single Judge observed that, according to the information contained in the TMS, the Respondent had transferred to club D the full amount of USD 1,050,000 in connection with the transfer of the player. Moreover, such circumstance was not contested by club D.
10. With respect to the Respondent’s request for reimbursement of the solidarity contribution by club D, the Single Judge took note that, for its part, club D referred to the transfer agreement and held that no mention is made as regards solidarity contribution. Club D merely stated that the transfer amount stipulated in the transfer agreement is a net amount, and that the Respondent is obliged to pay the solidarity contribution the player’s former clubs.
11. On account of the above, the Single Judge referred to the DRC’s well-established jurisprudence applied in similar cases, in accordance with which the player’s new club is ordered to remit the relevant proportion(s) of the 5% solidarity contribution to the club(s) involved in the player’s training in strict application of art. 1 and 2 of the Annex 5 to the Regulations. At the same time, the player’s former club is ordered to reimburse the same proportion(s) of the 5% of the compensation that it received from the player’s new club.
12. As a result, and in application of said jurisprudence, the Single Judge decided that the argumentation of club D could not be upheld.
13. Having established the above, the Single Judge referred once more to art. 1 of Annexe 5 of the Regulations, which provides the figures for the distribution of the solidarity contribution, according to the period in which the player was effectively trained by the club involved.
14. In this respect, the Single Judge recalled that the Football Confederation of Country B confirmed that the player, born on 26 September 1991, was registered with the Claimant as from 10 April 2008 until 14 August 2014.
15. 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 10 April 2008 until 14 August 2014, i.e. for 9 months of the season of the player’s 17th birthday, for the entire seasons of the player’s 18th, 19th, 20th and 21st birthday and for 7 months of the season of the player’s 22nd birthday. In terms of the percentage of the 5% solidarity contribution, the Single Judge calculated that, on a pro rata basis, this corresponds to 53.33% of 5% of the total transfer compensation, as opposed to the 53.5068% of 5% claimed by the Claimant.
16. The foregoing having been established, the Single Judge moved to analyse the Respondent’s argument that first instalment of the transfer amount, due on 20 January 2016, is time barred. He recalled that the Claimant lodged the claim on 13 June 2018 and therefore its entitlement to solidarity contribution based on the first instalment of USD 400,000 is time barred. Consequently, the Single Judge concluded, that the Claimant is entitled to 53.33% of the 5% calculated on the 2nd and 3rd instalment of the transfer amount, plus 5% interest p.a. as from the respective due dates.
17. 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 USD 17,332 and 5% interest p.a. on the amount of USD 17,332 awarded to the Claimant as follows until the date of effective payment: 5% on USD 9,333 as from 20 September 2016 and 5% on USD 7,999 as from 20 April 2017, as solidarity contribution for the player, Player F.
18. Furthermore, the Single Judge decided that club D must reimburse the solidarity contribution in the amount of USD 17,332 to the Respondent.
19. 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 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.
20. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is USD 17,332, related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to 5,000 (cf. table in Annexe A of the Procedural Rules).
21. As a result, considering the degree of success, the Single Judge determined the final costs of the current proceedings to the amount of 4,000, which shall be paid by the Respondent to FIFA.
22. The Single Judge concluded its deliberations in the present matter by establishing that any further claim lodged by the Claimant is rejected.
III. Decision of the Single Judge of the sub-committee of the DRC
1. The claim of the Claimant, Club A, is partially accepted, insofar as it is admissible.
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 USD 17,332 plus 5% interest p.a. until the date of effective payment as follows:
a. as from 20 September 2016, on the amount of USD 9,333;
b. as from 20 April 2017, on the amount of USD 7,999.
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. 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 4,000 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.XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
7. The intervening party, Club D (formerly known as Club D), has to reimburse to the Respondent the amount of USD 17,332 within 30 days as from the date of notification of this decision.
8. In the event that the aforementioned sum is not paid by the intervening party within the stated time limit, interest at the rate of 5% p.a. will fall due as of expiry of the aforementioned time limit and the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.
9. The Respondent is directed to inform the intervening party immediately and directly of the account number to which the remittance under point 7 above is to be made and to notify the Single Judge of the sub-committee of the DRC of every payment received.
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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