DECISIONI DI GIUSTIZIA SPORTIVA • F.I.F.A. - COMMISSIONE PER LO STATUS DEI CALCIATORI - CONTROVERSIE TRA SOCIETA'

• Data decisione: 6 ottobre 2020 • Stagione sportiva: 2020/2021

F.I.F.A. – Players’ Status Committee / Commissione per lo Status dei Calciatori – club vs club disputes / controversie tra società – (2020-2021) – fifa.com – atto non ufficiale – Decision 6 October 2020

Decision of the

Single Judge of the Players' Status Committee

passed on 6 October 2020,

regarding a dispute concerning the transfer of the player Aliou Dieng

BY:

Geoff Thompson (England), Single Judge of the PSC

CLAIMANT:

Al Ahly Sporting Club, Egypt

Represented by Monteneri Sports Law

RESPONDENT:

MC Algiers, Algeria

I. FACTS OF THE CASE

1. On 4 July 2019, the Egyptian club, Al Ahly Sports Club (hereinafter: the Claimant) and the Algerian club, MC Algiers (hereinafter: the Respondent), concluded a transfer agreement (hereinafter: the agreement) for the definitive transfer of the player, Aliou Dieng (hereinafter: the player) from the Respondent to the Claimant for a transfer compensation of USD 1,100,000.

2. Furthermore, clause 4 of the agreement read as follows:

“Second Party [the Respondent] declares that the agreed amount in exchange for his final transfer of the aforementioned player includes all the sponsorship rights, training, solidarity of the player and Second Party [the Respondent] may not claim First Party [the Claimant] for any financial entitlements for this player, now or in the future of any kind, and also declares that there are no sponsorship rights for any other club on the player”.

“The signing of this contract by is deemed to be a final clearance from this player that is the subject of this contract”.

“First Party [The Claimant] is not responsible for any compensation of any kind (training – the sponsorship rights – interdependence and solidarity) that may appear after the date of the player transfer to any other party. Second Party [The Respondent] is solely responsible for it without any responsibility on the first party”.

3. On 22 January 2020, the player’s former club, Djoliba AC, lodged a claim against the Claimant under the Transfer Matching System (TMS 5454).In the said proceedings, FIFA issued a proposal, which was accepted by the parties, and whereby the Claimant was condemned to pay to Djoliba AC the amount of USD 30,250 plus 5% interest p.a.

4. By means of its letter dated 20 April 2020, the Claimant informed the Respondent of the “violation of the fourth clause of the contract on the side of the Respondent, the Claimant requested the Respondent to reimburse USD 30,250 net of the solidarity contribution overpaid by the Claimant in the transfer fee plus 5% interest p.a. as from 4 July 2019 until the date of effective payment. The Respondent was requested to pay the amount in question within 10 days as from the receipt of the said correspondence”; however, to no avail.

5. Moreover, on 14 May 2020, the Claimant and Djoliba AC, concluded a settlement agreement, on the basis of which the Claimant would pay the total amount of USD 32,250 to Djoliba AC, in 5 instalments.

6. In its claim dated 3 July 2020, the Claimant explained that, since clause 4 of the transfer agreement provided that the Respondent would be responsible to pay solidarity contribution to the former clubs and, nevertheless, the Claimant was condemned to pay the amount of USD 30,250 to the player’s former club, Djoliba AC, the Claimant is entitled to claim back said amount from the Respondent.

7. In this context, the Claimant argued that:“considering that the Respondent failed to distribute the solidarity contribution to Djoliba and afterwards failed to return to the Claimant the amount paid by the Claimant to Djoliba, the Respondent would be otherwise unduly enriched in the event it could keep the full amount of the transfer fee it received”.

8. In his request for relief, the Claimant requested to be awarded the amount of USD 30,250 plus 5% interest p.a. as from 4 July 2019 until the date of effective payment, corresponding to the reimbursement of the amount paid by the Claimant to Djoliba AC in the proceeding TMS 5454.

9. The Respondent, despite having been requested by the FIFA administration to do so, failed to provide a response to the Claimant’s claim.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE PLAYERS’ STATUS COMMITTEE

1. The Single Judge of the Players’ Status Committee (hereinafter also referred to as: the Single Judge) first analysed whether he was competent to deal with the matter at hand. In this respect, he took note that the present matter was submitted to FIFA on 3 July 2020 and decided on 6 October 2020. Consequently, the June 2020 edition of the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber hereinafter: the 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 par. 1 and 2 of the Procedural Rules and confirmed that in accordance with art. 23 par. 1 and 3 in combination with art. 22 lit. f) of the Regulations on the Status and Transfer of Players, he shall adjudicate on a contractual dispute between two clubs belonging to different associations.

3. Consequently, the Single Judge is the competent body to decide on the present matter involving an Egyptian club and an Algerian club.

4. 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, it confirmed that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players, and considering that the present claim was lodged on 3 July 2020, the June 2020 edition of said regulations is applicable to the matter at hand as to the substance.

5. His competence and the applicable regulations having been established, and entering into the substance of the matter, the Single Judge started his analysis by acknowledging the facts of the case and the arguments of the parties as well as the documents contained in the file. The Single Judge, however, 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.

6. Having established the above, the Single Judge took noted that, on 4 July 2019, the parties concluded a transfer agreement regarding the permanent transfer of the player, Aliou Dieng from the Respondent to the Claimant, for the total transfer compensation of USD 1,100,000.

7. The Single Judge noted, that clause 4 of the transfer agreement stipulated the following:

“The signing of this contract by is deemed to be a final clearance from this player that is the subject of this contract”.

8. Subsequently, the Single Judge took note that on 3 July 2020, the Claimant lodged a claim against the Respondent requesting payment in the amount of USD 30,250, corresponding to the reimbursement of the amount paid by the Claimant to Djoliba AC in the proceedings TMS 5454 as solidarity contribution, by relying on the provisions of clause 4 of the transfer agreement.

9. Furthermore, the Single Judge observed that on 14 May 2020, the Claimant concluded a settlement agreement with Djoliba AC in connection with the case TMS 5454 , based on which the Claimant agreed to pay to Djoliba AC the total solidarity contribution amount of USD 32,250.

10. In continuation, the Single Judge noted that the Respondent, for its part, had not provided a response to the claim. Thus, the present matter shall be assessed based on the documents on file (cf. art. 9 par. 3 of the Procedural Rules).

11. In any case, the Single Judge referred to art. 21 of the Regulations in combination with art. 1 of Annexe 5 of the Regulations which stipulate that, 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 be distributed by the new club as a solidarity contribution to the club(s) involved in the training and education of the player in proportion of the number of years the player has been registered with the relevant club(s) between the seasons of his 12th and 23rd birthday.

12. In addition, the Single Judge referred to the well-established jurisprudence of the Chamber regarding claims for solidarity contribution in which, on the one hand, a club involved in the training of the player claims solidarity contribution from the player’s new club, and, on the other hand, the new club of the player holds that the solidarity contribution should be paid by the player’s former club. According to this jurisprudence, it is the responsibility of the player’s new club to remit the relevant proportion of the 5% solidarity contribution to the club(s) involved in the player’s training in strict application of the relevant provisions of the Regulations.

13. Turning to the specific details of the matter at hand, the Single Judge however noted that the Claimant did not provide conclusive documentary evidence, on the basis of which it could established that it made relevant payment of the amount of USD 30,250 (or UD 32,250) as solidarity contribution to the player’s former club, Djoliba AC, as per the contents of the settlement agreement.

14. In this regard, the Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par. 3 of the Procedural Rules, according to which a party claiming a right on the basis of an alleged fact shall carry the respective burden of proof.

15. In this respect, since the Claimant was not able to demonstrate that it had effectively paid the amount of USD 30,250 (or USD 32,250), corresponding to the solidarity contribution as awarded per the proposal made in case TMS 5454 to Djoliba AC and the settlement agreement concluded on 14 May 2020, the Chamber concluded that the claim of the Claimant was not duly substantiated.

16. In view of the above, the Single Judge decided to reject the Claimant’s claim for the reimbursement of the said solidarity contribution.

17. In continuation, the Single Judge of the PSC referred to art. 25 par. 2 of the Regulations in combination with art. 18 par. 1 of the Procedural Rules, according to which in the proceedings before the Dispute Resolution Chamber relating to disputes regarding solidarity mechanism costs in the maximum amount of CHF 25,000 are levied. The costs are to be borne in consideration of the parties’ degree of success in the proceedings.

18. In this respect, the Single Judge of the PSC referred to the Covid-19 Football Regulatory Issues – FAQ, published on 11 June 2020 which establish that, given the current circumstances, for any claim lodged between 10 June 2020 and 31 December 2020 (both inclusive), there will be no requirement to pay an advance of costs and no procedural costs shall be ordered. Therefore, the Single Judge established that the present decision shall be rendered without costs.

III. DECISION OF THE SINGLE JUDGE OF THE PLAYERS' STATUS COMMITTEE

1. The claim of the Claimant, Al Ahly Sporting Club, is rejected.

For the Players' Status Committee:

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).

CONTACT INFORMATION:

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