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 18 December 2020

Decision of the

Single Judge of the sub-committee of

The Dispute Resolution Chamber

passed on 18 December 2020

regarding solidarity contribution in connection with the transfer of the player Allan RODRIGUES DE SOUZA from Liverpool FC (England) to Atletico MG (Brazil)

BY:

Stefano Sartori (Italy), Single Judge of the sub-committee of the Dispute Resolution Chamber

CLAIMANT:

FLUMINENSE FC DE JOINVILLE - SC, Brazil

RESPONDENT:

ATLETICO MG, Brazil

I. FACTS OF THE CASE

Player: Allan RODRIGUES DE SOUZA

Date of birth: 3 March 1997

Player passport: issued by the Confederação Brasileira de Futebol (CBF) on 16 January 2020

Season Birthday Club(s) Registration dates Status 2019 22nd Fluminense FC de Joinville - SC 01/02/19-31/12/19 Professional (on loan from Liverpool FC)

Sporting season: 1 January to 31 December (Brazil)

Date of transfer: 15 January 2020, from Liverpool FC (England) to Atletico MG (Brazil)

Conditions: Fixed transfer fee of EUR 3,500,000 payable as follows:

a. EUR 3,000,000 by 17 January 2020; and

b. EUR 500,000 by 1 September 2022.

Clause 2.8 of the transfer agreement:

“Any taxes, levies, or dues required to be paid in England in connection with this Agreement shall be the responsibility and liability of Liverpool. Any taxes, levies, or dues required to be paid in Brazil in connection with this Agreement shall be the responsibility and liability of Atletico Mineiro. The parties agree that the amounts pay able by Atletico Mineiro to Liverpool are net amounts to be actually received by Liverpool and shall be inclusive of all amounts which may be payable in respect of the Transfer to Liverpool by way of training compensation and/or solidarity contributions pursuant to the FIA Regulations for the Stars and Transfer of Players (training compensation and/or solidarity contributions both as Training Compensation"). Accordingly, Liverpool shall not make any claim against Atletico Mineiro for any Training Compensation owed to Liverpool in respect of the Transfer.

Atletico Mineiro will be solely responsible for the payment of any applicable Training Compensation to third party football clubs as a consequence of any payments made to Liverpool hereunder in respect of the Transfer.”

Claimant club: Fluminense FC de Joinville – SC (Brazil)

Respondent club: Atletico MG (Brazil)

Claim and Response:

1. On 23 October 2020, the Claimant requested EUR 14,405.21 as solidarity contribution on the first instalment due for the transfer of the player from Liverpool FC to the Respondent, along with 5% interest p.a. as from the due date.

2. The Claimant deemed that since the player was registered with it for 333 days during his 22nd birthday season, it was entitled to receive 9.1233% of 5% of the solidarity contribution generated by the transfer.

The Claimant, added 5% solidarity contribution to the transfer fee as per clause 2.8 of the transfer agreement and calculated that the sum of EUR 157,894.74 corresponded to the total solidarity contribution generated by the first instalment

3. On 4 November 2020, the FIFA administration submitted a proposal to the parties, informing them that it was of the opinion that the Respondent should pay the amount of EUR 14,447.37 to the Claimant.

4. On 11 November 2020, the Claimant accepted the proposal of the FIFA administration.

5. On 4 December 2020, the Respondent rejected the proposal of the FIFA administration arguing that the sum of EUR 13,726.03 was the one due to the Claimant as solidarity contribution. The Respondent based its calculation on the amount of EUR 3,000,000.

6. In addition, the Respondent declared that “our financial department is in a dire state as a result of a COVID-19 pandemic which has limited our biggest sources of income and therefore every single penny matters. Kindly request you to confirm that our calculation is correct. Lastly, we kindly request if FIFA can propose a payment plan whereby the Respondent can pay the Solidarity Contribution to Fluminense FC in 3 equal instalments.”

II. LEGAL CONSIDERATIONS

Applicable law: Regulations on the Status and Transfer of Players (RSTP): January 2020 edition.

Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (Procedural Rules): June 2020 edition.

Jurisdiction: Yes, uncontested

Admissible: Yes, uncontested

Decision:

1. The Claimant is requesting the payment of its portion of solidarity contribution on the first instalment of the fixed transfer fee.

2. The Respondent does not contest the entitlement of the Claimant to receive solidarity contribution for the training and education provided to the player by the latter.

3. Nevertheless, the Respondent contested amount claimed by the latter arguing that a lower sum was payable as solidarity contribution.

4. It is undisputed that the player was registered with the Claimant as from 1 February 2019 until 31 December 2019, corresponding to 334 days of the season of the player’s 22nd birthday.

5. It is also uncontested that the Respondent did not pay to the Claimant its portion of the solidarity contribution generated by the first instalment of the transfer fee.

7. The transfer fee that was to be paid to the Respondent did not include solidarity contribution. Therefore, solidarity contribution is to be calculated in addition to the relevant transfer compensation.

8. As a result, 5% is to be added to the payable as first installment, i.e. to the sum of EUR 3,000,000. Consequently, the amount to be taken into account to calculate the solidarity contribution due to the Claimant on the first instalment is EUR 3,157,895, i.e. EUR 3,000,000 plus 5%.

6. The Claimant is entitled to receive its portion of the due solidarity contribution for the training and education provided to the player during the course of the season of the player’s 22nd birthday.

7. As per art. 1 par. 1 of Annexe 5 RSTP, solidarity contribution for the season of a player’s 22nd birthday amounts to 10% of the total solidarity contribution, in casu EUR 157,895.

8. If the player is registered for less than a year this amount shall be calculated pro rata (cf. Art. 1 par. 1 of Annexe 5 RSTP).

9. The player was registered with the Claimant for 334 days of his 22nd birthday season. Therefore, the Claimant is entitled to receive 9.15% of the due solidarity contribution, i.e. 9.15% of EUR 157,895 which amounts to EUR 14,447.37.

10. The Claimant limited its claim to the sum EUR 14,405.20.

11. In line with the legal principle of non ultra petita, the Claimant shall be awarded solidarity contribution in the amount of EUR 14,405.20.

12. Taking into account the specific request of the Claimant and in accordance with the well-established jurisprudence of the DRC, the Claimant shall be granted 5% interest p.a. as from 17 February 2020, i.e. as from the day after the payment of solidarity contribution on the first instalment became due.

13. The Respondent requested the implementing of a payment plan since it allegedly faced financial difficulties due to the consequences of the COVID-19 outbreak.

14. Art. 12 par.3 of the Procedural Rules stipulates that a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

15. The Respondent did not provide any evidence that would support its financial hardship allegations.

16. The Respondent’s alleged financial hardship cannot be considered a valid reason to not comply with its obligations.

17. As such, the request of a payment plan in instalments shall be dismissed.

18. Consequently, the claim of the Claimant is accepted.

19. No procedural are levied in accordance with art. 18 of the Procedural Rules.

20. The relevant provisions of art. 24bis RSTP are applicable in the present matter.

III. DECISION

1. The claim of the Claimant, Fluminense FC de Joinville - SC, is accepted.

2. The Respondent, Atletico MG, shall pay to the Claimant EUR 14,405.20 as solidarity contribution, plus 5% interest per annum on that amount as from 17 February 2020, until the date of effective payment.

3. The Claimant shall immediately inform the Respondent of the bank account to which the Respondent must pay the due amount (including all applicable interest).

4. The Respondent shall provide evidence of full payment to psdfifa@fifa.org. If applicable, the evidence shall be translated into an official FIFA language (English, French, German, Spanish).

5. If the due amount (including all applicable interest) is not paid by the Respondent within 45 days as from notification of the bank account details, the following consequences shall apply:

 1. 2.

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.

The ban will be lifted immediately, and prior to its complete serving, following confirmation that the due amount (including all applicable interest) has been received by the Claimant. 3.

In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.

6. No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the Procedure of the Players’ Status Committee and Dispute Resolution Chamber).

For the Single Judge of the sub-committee of the Dispute Resolution Chamber:

Emilio García Silvero

Chief Legal & Compliance Officer

NOTE RELATED TO THE APPEAL PROCEDURE:

Pursuant to article 58 paragraph 1 of the FIFA Statutes, this decision may be appealed before the Court of Arbitration for Sport within 21 days of notification.

NOTE RELATED TO 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).

CONTACT INFORMATION:

Fédération Internationale de Football Association

FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland

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