F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2020-2021) – fifa.com – atto non ufficiale – Decision 2 July 2020

Decision of the

Dispute Resolution Chamber

passed on 2 July 2020,

regarding solidarity contribution for the transfer the player Gelmin Javier Rivas Boada

COMPOSITION:

Clifford J. Hendel (USA), Deputy Chairman Michelle Colucci (Italy), member Todd Durbin (USA), member

CLAIMANT:

Atlético Independiente Sucre, Venezuela

RESPONDENT:

Al Ittihad, Saudi Arabia

I. FACTS OF THE CASE

1. According to the player passport issued by the Federación Venezolana de Fútbol (FVF), the player, Gelmin Javier Rivas Boada (hereinafter: the player), born on 23 March 1989, was registered with its affiliated club, Atletico Independiente Sucre (hereinafter: Claimant) as from 1 January 2005 until 31 December 2005

2. The sporting season in Venezuela runs as from 1 January until 31 December.

3. According to the information available in the Transfer Matching System (TMS), on 2 July 2015 the Venezuelan club, Deportivo Tachira FC, concluded a transfer agreement with the Saudi Arabian club, Al Ittihad Club (hereinafter: Respondent), for the transfer of the player to the Respondent for a transfer fee in the amount of USD 1,400,000 “net of (…) Solidarity Mechanism”, payable on 2 July 2015.

4. On 17 July 2015, the Claimant sent correspondence to FIFA asking what the formal procedure is in order to obtain solidarity contribution for the transfer of the player from Deportivo Tachira FC to the Respondent.

5. According to the information available in the TMS, the player was registered with the Respondent on 30 July 2015.

6. On 6 August 2015, FIFA informed the Claimant that all petitions had to comply with art. 9 of the Procedural Rules.

7. On 12 February 2016, the Claimant contacted the FVF requesting to be “incorporated in the TMS […] in order to obtain the solidarity mechanism which corresponds to us for the transfer of the player […] from Deportivo Tachira FC to [the Respondent]”.

8. By letter dated 12 October 2015, but sent on 30 May 2016, the Claimant informed the Respondent in writing that it had not yet obtained the solidarity contribution following the transfer of the player from Deportivo Tachira FC to the Respondent, requesting “0.5% of total [transfer] compensation”. As per the Claimant, “we are sending you here with passport [of the player] who give us the [FVF] with the dates of their stay stays in different clubs including ours”.

9. By letter dated 26 November 2016, sent on 13 December 2016, the Claimant informed FIFA that on 30 May 2016 it requested in writing the solidarity contribution from the Respondent, but that the Respondent had not paid the corresponding solidarity contribution.

10. In the correspondence sent on 13 December 2016, the Claimant further held that, “in light of the situation, we are obligated to turn to [FIFA] to request to activate via FIFA, the amount that corresponds to us”.

11. By letter dated 1 April 2017, sent on 13 November 2017 and received on 15 November 2017, the Claimant again contacted FIFA requesting it to “carry out the procedure for obtaining the solidarity contribution for the transfer of the player […] to [the Respondent]”. In this context, the Claimant argued that it had “contacted [the Respondent] but never received a reply, now we turn again to [FIFA] requesting [it] to activate the [DRC] to carry out the [Solidarity Mechanism] procedure”. In said correspondence, the Claimant further provided FIFA with a player passport.

12. On 30 January 2018, FIFA informed the Claimant that it acknowledged receipt of its correspondence dated 13 November 2017 by means of which it wished to lodge a claim against the Respondent for solidarity contribution following the transfer of the player from Deportivo Tachira FC to the Respondent in July 2015. In this context, FIFA informed the Claimant that, since October 2015, all claims for solidarity mechanism have to be lodged via the TMS. In said letter, FIFA further referred to art. 25 (5) of the regulations and informed the Claimant that “for a petition which has not been lodged in front of FIFA within the above-mentioned time limit FIFA is not competent”.

13. On 2 March 2018, the FVF informed the Claimant in writing that the player was transferred to the Respondent in July 2015 for the transfer amount of USD 1,400,000. Furthermore, the FVF informed the Claimant that “only professional clubs can be incorporated in the TMS”.

14. By letter dated 6 November 2015, sent on 5 March 2018, the Claimant informed the FVF that it was “currently carrying out the procedure before FIFA and the [FVF] regarding the payment that corresponds to us for the solidarity mechanism for the transfer [of the player] in the total amount of USD 28,000”.

15. By letter dated 5 April 2018, but sent on 10 April 2018, the Claimant requested the FVF in writing to “carry out the procedure via TMS in order to obtain the solidarity mechanism that corresponds to us for the transfer of the player […] from Deportivo Tachira FC to [the Respondent]”. In said letter, the Claimant further held that “on 12 February 2016” it contacted the FVF regarding said procedure. However, according to the Claimant, the FVF demanded that the Claimant comply with “a series of requisites”, which, as per the Claimant, it complied with.

16. On 4 June 2018, in response the Claimant’s request to the FVF dated 5 April 2018, FVF held that in case the Claimant “does not possess an international bank account, [the FVF] will have to receive the funds in its account and later transfer it to [the Claimant’s] account in local currency, except if [the Claimant] opens an international bank account in its name on which it could receive said amount”. The FVF further informed the Claimant that it would have to “deduct 10% of the income for the corresponding solidarity rights regarding [the player], as administrative costs. However, in case [the Claimant] opens an international bank account, and adapts [the claim] to [FIFA’s] procedural rules we will attach said documentation [to the TMS] free of costs”.

17. On 14 December 2018, the FVF uploaded a claim, on behalf of the Claimant, to the TMS in front of FIFA for solidarity contribution regarding the transfer of the player from Deportivo Tachira FC to the Respondent in July 2015. In said claim, the Claimant requested 1% of the transfer amount, “which, in principle, is USD 14,000”.

18. Furthermore, in said claim, the Claimant referred to the two correspondences sent to FIFA on 17 July 2015 and 13 December 2016 respectively. In this context, the Claimant acknowledged FIFA’s reply of 6 August 2015 to the letter of 17 July 2016, but held that FIFA never responded to its correspondence of 13 December 2016.

19. In continuation, the Claimant referred to FIFA’s letter dated 30 January 2018 in which it was informed that all claims had to be submitted via TMS.

20. In this context, the Claimant held that it contacted the FVF on “numerous occasions” in order for it to carry out the procedure via TMS. However, according to the Claimant, the FVF refused to “undergo this procedure and refused to add the club to TMS”, informing it that “only professional clubs can be incorporated in the TMS”.

21. The Claimant further referred to the FVF correspondence dated 4 June 2018, highlighting that the FVF would deduct 10% of the income corresponding to the solidarity contribution.

22. As per the Claimant, “for these reasons, [it] was not able to undergo the procedure corresponding to obtaining the solidarity mechanism via TMS. However, [it] had already turned to FIFA in order to commence obtaining the solidarity mechanism, procedures that commenced on 17 July 2015”.

23. Despite having been invited to do so, the Respondent failed to reply to the Claimant’s claim

II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER

24. First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or DRC) analysed whether it was competent to deal with the case at hand. Taking into account the wording of art. 21 of the 2020 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.

25. Subsequently, the Chamber 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 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 DRC is competent to decide on the present dispute relating to solidarity mechanism between clubs belonging to different associations handled through TMS.

26. Furthermore, the Chamber 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 (editions 2015, 2016, 2018, 2019 and 2020), and considering that the player was registered with the Respondent as a professional on 30 July 2015, the Regulations for the Status and Transfer of Players (edition 2015, hereinafter: Regulations) is applicable to the matter at hand as to the substance.

27. Having established the above, the Chamber unanimously stated that first and foremost, it is crucial to clarify the date of the submission of the formal petition to FIFA, in order to establish whether the claim was brought to FIFA in due time. In this context, the Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the general procedural terms outlined in the Procedural Rules, clearly establishes that the decision-making bodies of FIFA shall not hear any dispute if more than two years have elapsed since the event giving rise to the dispute arose and that the application of this time limit shall be examined ex officio in each individual case.

28. In this context, the DRC duly noted that the player was registered with the Respondent on 30 July 2015. Thus, the Chamber firstly emphasized that the final deadline for the Claimant to lodge a claim without it being time-barred would have been 30 August 2017. Consequently, the Chamber unanimously agreed that it firstly had to determine whether the Claimant had complied with the obligation outlined in art. 25 par. 5 of the Regulations by submitting its official statement of claim by 30 August 2017 at latest.

29. Along these lines, the Chamber acknowledged that FIFA had received correspondence from the Claimant on 17 July 2015, in which the Claimant asked FIFA what the formal procedure is in order to obtain solidarity contribution. Having said this, the DRC was quick to point that the correspondence of 17 July 2015 could not be interpreted as a formal claim meeting the requirements of art. 9 par. 1 of the Procedural Rules, given that it corresponded to a question of a general nature and, in any case, was sent prior to the actual registration of the player with the Respondent. In other words, as per the Chamber, no solidarity contribution was due to the Claimant on 17 July 2015 and no formal claim aiming at obtaining the relevant share of the solidarity contribution was received.

30. In continuation, the DRC analysed the correspondence dated 26 November 2016 and sent via regular post on 13 December 2016. In this context, the DRC firstly noted that as per 1 October 2015, all claims related to solidarity contribution and training compensation had to be submitted via TMS. Thus, the Chamber firstly determined that by sending the correspondence via regular post on 13 December 2016, the Claimant had not complied with the official procedure with regard to claims for solidarity contribution.

31. At this point, and as regards the clubs’ general obligation as per 1 October 2015 to lodge claims for solidarity contribution and training compensation via the TMS, the DRC wished to point out that FIFA had duly informed its members of said requisition by means of Circular 1500 dated 4 September 2015. In this regard, the Chamber further highlighted that as per the last paragraph of said circular, FIFA requested its members to ensure that “all of your affiliated clubs are informed accordingly without delay”.

32. Consequently, the DRC agreed that all national associations, including the FVF, carry the responsibility of informing their respective affiliated clubs of any and all regulatory changes. Likewise, the Chamber was of the firm opinion that any club wishing to obtain their rights deriving from the solidarity mechanism, such as the Claimant, carry the responsibility to do so in accordance with FIFA’s regulations, including the obligation to submit all claims via the TMS as per the contents of art. 1 par. 1 of Annexe 6 of the Regulations.

33. Next, the Chamber recalled that by means of the correspondence sent via regular post on 13 December 2016, the Claimant stated that “we are obligated to turn to [FIFA] to request to activate via FIFA, the amount that corresponds to us”. Having said this, the members of the Chamber concluded that said correspondence did not include a clear motion of claim and could therefore not be considered as a submission of a formal complaint in the sense of art. 9 of the Procedural Rules.

34. The Chamber was comforted in its conclusion by the fact that on 6 August 2015, FIFA had already informed the Claimant that all petitions had to comply with art. 9 of the Procedural Rules. In other words, given that the Claimant was already informed as regards the formal criteria for lodging a claim, the DRC saw no excuses as to why the Claimant had failed to comply with said criteria.

35. In continuation, the Chamber took into account that by letter received on 15 November 2017, the Claimant again contacted FIFA requesting it to “carry out the procedure for obtaining the solidarity contribution for the transfer of the player […] to [the Respondent]”. In this context, the DRC recalled that the Claimant argued that it had “contacted [the Respondent] but never received a reply, now we turn again to [FIFA] requesting [it] to activate the [DRC] to carry out the [Solidarity Mechanism] procedure”.

36. In this regard, the Chamber firstly agreed the correspondence received on 15 November 2017, if considered a claim at all, would have been time-barred given that, as mentioned above, the deadline for the Claimant to lodge a claim for solidarity contribution was 30 August 2017.

37. Finally, the DRC noted that on 14 December 2018, the FVF uploaded a claim, on behalf of the Claimant, to the TMS in front of FIFA for solidarity contribution regarding the transfer of the player from Deportivo Tachira FC to the Respondent in July 2015. In this sense, although the claim complied with the formal conditions stipulated in art. 9 of the Procedural Rules and was uploaded correctly via the TMS, the Chamber emphasized that said claim was submitted after the regulatory deadline of 30 August 2017.

38. Having said this, the DRC took into account the Claimant’s arguments, who explained for the first time to FIFA, that it contacted the FVF on “numerous occasions” in order for it to carry out the procedure via TMS. The Chamber further recalled that according to the Claimant, the FVF refused to “undergo this procedure and refused to add the club to TMS”, and that the FVF would even deduct 10% of the income corresponding to the solidarity contribution.

39. In this context, the members agreed that the Claimant did not provide any clear evidence demonstrating that the FVF had refused to upload a claim to the TMS – as per art. 1 par. 1 of Annexe 6 of the Regulations - for solidarity contribution regarding the transfer of the player from Deportivo Tachira FC to the Respondent in July 2015 prior to its regulatory deadline of 30 August 2017. What is more, the alleged circumstance that the FVF had apparently refused to upload the claim of the Claimant in TMS, was only brought forward by the Claimant for the first time in December 2018. Thus, this part of the Claimant’s argumentation cannot be considered as a legitimate justification for the lateness of the Claimant’s claim, in view of the lack of timely submitting any documentary evidence confirming the circumstances as described by the Claimant.

40. In conclusion, the Chamber concurred that the Claimant’s claim against the Respondent for the payment of solidarity contribution was lodged in front of FIFA on 14 December 2018, while the event giving rise to the dispute arose on 17 July 2015, i.e. the date on which the player was registered as a professional with the Respondent. Consequently, the Chamber concluded that the Claimant had brought its claim against the Respondent after the aforementioned two-year period of time had elapsed.

41. In view of all the above, the Chamber found that the Claimant’s claim for the payment of solidarity contribution must be declared barred by the statute of limitations in application of art. 25 par. 5 of the Regulations.

III. DECISION OF THE DISPUTE RESOLUTION CHAMBER

The claim of the Claimant, Atletico Independiente Sucre, is inadmissible.

For the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

According to article 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this decision.

NOTE RELATED TO THE PUBLICATION:

FIFA may publish this decision. For reasons of confidentiality, 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 Procedural Rules).

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