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 22 December 2020
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 22 December 2020
regarding solidarity contribution for the transfer of the player Bruno Petkovic
BY:
Philippe Diallo (France), Single Judge of the sub-committee of the Dispute Resolution Chamber
CLAIMANT:
NK Hrvatski dragovoljac Zagreb, Croatia
RESPONDENT:
GNK Dinamo Zagreb, Croatia
I. FACTS OF THE CASE
Player: Bruno PETKOVIC
Date of birth: 16 September 1994
Player passport: issued by the Croatian Footbal Federation (“HNS”) on 3 September 2020
Season
Birthday
Club
Registration
Status
2011-2012
17th
NK Hrvatski dragovoljac Zagreb
17.08.2011- 30.06.2012
Amateur
2012-2013
18th
NK Hrvatski dragovoljac Zagreb
01.07.2012-10.07.2012
Amateur
Sporting season: 1 July to 30 June of the following year
Date of transfer(s): 9 August 2018 (loan) & 18 January 2019 (permanent), Bologna FC (Italy) to GNK Dinamo Zagreb (Croatia)
Financial conditions:
- Loan fee:
EUR 292,307.69 “excluding the sum due as Solidarity contribution” payable by 31 August 2018.
- Transfer fee:
EUR 876,923.07 “excluding the sum due as Solidarity contribution” payable as follows:
EUR 292,307.69 by 15 March 2019;
EUR 292,307.69 by 15 September 2019; and
EUR 292,307.69 by 15 December 2019.
Claimant club: NK Hrvatski dragovoljac Zagreb (Croatia)
Respondent club: GNK Dinamo Zagreb (Croatia)
Claim and Response:
1. On 10 September 2020, the Claimant requested to be awarded 9% of the 5% solidarity contribution of the total amount of EUR 1,230,769.23, plus 5% interests p.a. as of the due dates.
2. The Claimant provided the following explanations as to the exclusion of the solidarity:
Loan transfer: EUR 292,307.69 “net” X 100 / 95 = EUR 307.692,31 “gross”;
Permanent transfer: EUR 307.692,31 “gross” X 3 = EUR 923,076.92 “gross”
3. On 8 October 2020, the FIFA administration made a proposal to the parties to the settle the matter suggesting that the Respondent should pay the Claimant the sum of EUR 5,544.61 as solidarity contribution, plus 5% interests p.a. as from the due date.
4. The proposal was accepted by the Claimant and rejected by the Respondent.
5. On 23 October 2020, the Respondent contested FIFA’s competence to adjudicate the present matter arguing the competence of the Court of Arbitration of the Croatian Football Federation instead.
6. On a subsidiary basis, the Respondent sustained that the claim of the Claimant with regard to the payment of solidarity contribution on the loan was barred by the statutes of limitations in accordance with art. 25 par. 5 of the Procedural rules.
7. In addition, the Respondent held that due to the Claimant’s alleged “pre-bankruptcy proceedings” it was undergoing, the provided Power of Attorney was inaccurate.
II. LEGAL CONSIDERATIONS
Applicable law: RSTP: June 2018 edition.
Procedural Rules: June 2020 edition.
Jurisdiction: Yes, contested
Admissible: Yes, contested
Decision:
8. In accordance with art. 22 e) in conjunction with art. 24 par. 1 of the Regulations on the Status and Transfer of Players (RSTP), the Dispute Resolution Chamber (DRC) is competent to hear and adjudicate on disputes relating to training compensation and the solidarity mechanism between clubs belonging to the same association when the transfer of the player at the basis of the dispute occurs between clubs belonging to different associations.
9. The DRC and not the Court of Arbitration of the Croatian Football Federation is competent to decide on the matter at hand as it concerns a dispute relating to solidarity mechanism between two clubs affiliated to the Croatian Football Federation on the basis of a transfer concluded between an Italian club and a Croatian club.
10. The Claimant is requesting the payment of 9% of the 5% solidarity contribution on the loan and the permanent transfer (i.e. total amount of EUR 1,230,769.23 composed of the “gross” loan fee (EUR 307,692.31) and permanent fee (EUR 923,076.92)).
11. In accordance with art. 2 par. 1 of Annexe 5 RSTP, solidarity contribution is to be paid to the training club(s) of a player no later than 30 days after the player’s registration or, in case of contingent payments, 30 days after the due date of such payments.
12. Any solidarity contribution due on the transfer of the player was therefore to be paid by the Respondent to the training club(s) of the player as follows: on 30 September 2018 for the loan fee; on 14 April 2019 for the first installment of the transfer fee; on 15 October 2019 for the second installment of the transfer fee; and on 14 January 2020 for the third installment of the transfer fee.
13. As per art. 25 par. 5 of the RSTP, FIFA shall not hear any case subject to the RSTP if more than two years have elapsed since the event giving rise to the dispute. In casu, the event giving rise to the dispute is the non-payment by the Respondent of the solidarity contribution due to the training club(s) of the players as per above.
14. The claim of the Claimant was lodged on 10 September 2020.
15. The loan fee was due by 31 August 2018. Thus, solidarity contribution fell due on 30 September 2018, and fell overdue on 1 October 2018, i.e. the date of event giving rise to the dispute. Any claim in relation to the loan fee shall have been lodged on or before 1 October 2020. As such, the claim of the Claimant in relation to the loan fee was lodged on time.
16. The allegations of the Respondent as regards to the proceedings the Claimant, affiliated to the Croatian FA, is allegedly undergoing in Croatia does not interfere with its right to lodge a claim via its TMS account giving power of attorney to a lawyer of its choice.
17. The Respondent did not contest the entitlement of the Claimant to receive solidarity contribution.
18. It remained uncontested that the player was registered with the Claimant as follows:
a. 2011-2012 season (season of the Player’s 17th birthday): 319 days; and
b. 2012-2013 season (season of the Player’s 18th birthday): 10 days.
19. It also uncontested that the Respondent did not pay to the Claimant its portion of the solidarity contribution generated by the transfer of the player.
20. The sum payable under the loan and transfer agreements amounts to EUR 1,230,769.23 “gross”.
21. As per art. 21 and Annexe 5 of the RSTP, 5% of EUR 1,230,769.23, i.e. EUR 61,538, was to be deducted by the Respondent as solidarity contribution and distributed to the training club(s) of the player.
22. 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 seasons of his 17th and 18th birthdays.
23. According to art. 1 par. 1 of Annexe 5 of the RSTP, solidarity contribution for the season of the player’s 17th and 18th birthday seasons amounts to 10% of the total solidarity contribution.
24. In this regard, the player was registered with the Claimant:
a. for 319 days of the season of the player’s 17th birthday. Therefore, the Claimant is entitled to receive 8.74% of the due solidarity contribution, i.e. 8.74% of EUR 61,538;
b. for 10 days of the season of the player’s 18th birthday. Therefore, the Claimant is entitled to receive 0.27% of the due solidarity contribution, i.e. 0.27% of EUR 61,538.
25. In view of the above, the Claimant would in principle be entitled to receive, as solidarity contribution for the player, 9.01% of the 5% solidarity contribution due over the total “gross” amount of EUR 1,230,769.23.
26. The Claimant limited its claim to 9% of the solidarity contribution due.
27. In line with the legal principle of non ultra petita, the Claimant is entitled to receive from the Respondent the sum of EUR 5,538.40 as solidarity contribution, corresponding to 9% of EUR 61,538.
28. Taking into account the request of the Claimant as well as the jurisprudence of the DRC, the Claimant is entitled to receive 5 interests p.a. as from the day after each instalment became due as follows:
- on the amount of EUR 1,384.60 as of 1 October 2018;
- on the amount of EUR 1,384.60 as of 15 April 2019;
- on the amount of EUR 1,384.60 as of 16 October 2019;
- on the amount of EUR 1,384.60 as of 15 January 2020.
29. 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).
30. Art. 24 bis is applicable.
DECISION
1. The claim of the Claimant, NK Hrvatski dragovoljac Zagreb, is accepted.
2. The Respondent, GNK Dinamo Zagreb, shall pay to the Claimant EUR 5,538.40 as solidarity contribution, plus 5% interest per annum, until the date of effective payment, as follows:
- on the amount of EUR 1,384.60 as of 1 October 2018;
- on the amount of EUR 1,384.60 as of 15 April 2019;
- on the amount of EUR 1,384.60 as of 16 October 2019;
- on the amount of EUR 1,384.60 as of 15 January 2020.
3. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to chhelpdesk@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).
4. In the event that the amount due, plus interest as established 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 following consequences shall arise:
1.
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 aforementioned ban mentioned will be lifted immediately and prior to its complete serving, once the due amount is paid.
(cf. art. 24bis of the Regulations on the Status and Transfer of Players). 2.
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.
5. 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
www.fifa.com | legal.fifa.com | chhelpdesk@fifa.org | T: +41 (0)43 222 7777