F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2017-2018) – fifa.com – atto non ufficiale – Decision 10 August 2018

Decision of the

Dispute Resolution Chamber

passed in Zurich, Switzerland, on 10 August 2018,

in the following composition:

Geoff Thompson (England), Chairman (did not take part in the deliberations)

Carlos González Puche (Colombia), member

Eirik Monsen (Norway), member

Juan Batista Mahiques (Argentina), member

Daan de Jong (The Netherlands), member

on the matter between the club,

Club A, Country B,

as Claimant

and the club,

Club C, Country D

as Respondent

and the club,

Club E, Country F

as Intervening party I

and the club,

Club G, Country H

as Intervening party II

regarding solidarity contribution in connection with the transfer

of the player, Player J

I. Facts of the case

1. According to the player passport issued by the Football Federation of Country B (Football Federation K) on 19 September 2016, the player, Player J (hereinafter: the player), born on 10 May 1987, was registered with Club A (hereafter: Club A) as from 1 March 2001 until 28 February 2005. In this respect, Club A had previously submitted several player passports, all of them containing discrepant information regarding the player’s career. After being asked by FIFA to clarify this issue, Club A submitted a declaration of the Football Federation K dated 12 October 2017, in which it is confirmed that the player passport dated 19 September 2016 is ‘the most reliable and valid’. Further, the Football Federation K explained that the differences in the several player passports occurred because the Football Federation K ‘is yet to have a registration system’ and it updates player passports ‘when we get new and valid information on the player’s playing history’.

2. The football season in Country B, during the period in which the player was allegedly registered with Club A, followed the calendar year.

3. According to the information contained in the Transfer Matching System (TMS), on 8 July 2015, the Club of Country F, Club E (hereafter: Club E) loaned the player to the Club of Country H, Club G (hereinafter: Club G) from 1 July 2015 until 30 June 2016. However, on 31 January 2016, Club E concluded a transfer agreement with Club G and with the Club of Country D, Club C (hereafter: Club C) regarding the transfer of the player to Club C. According to article 1.4 of said transfer agreement, it was agreed that ‘the further temporary transfer of the registration of the player shall occur directly from Club G to Club C (as opposed to the Player’s registration reverting from Club G to Club E before a future transfer of the registration from Club E to Club C) […]’.

4. In order to transfer the loan of the player to Club C, all parties involved, i.e. Club E, Club G and Club C agreed upon a transfer compensation amounting to EUR 1,555,555, payable as follows:

- an amount of EUR 555,555 to be paid by Club C to Club G, as compensation for the early termination of the loan of the player at Club G, due ‘within 14 days of the satisfaction’ of several conditions, the most relevant ones being the issuing of the player’s ITC as well as the player being registered and eligible to play for Club C;

- an amount of EUR 1,000,000 to be paid by Club C to Club E, as transfer compensation for the loan transfer of the player to Club C, payable in five instalments, as follows:

 EUR 200,000 due on 5 February 2016;

 EUR 200,000 due on 5 March 2016;

 EUR 200,000 due on 5 April 2016;

 EUR 200,000 due on 5 May 2016;

 EUR 200,000 due on 5 June 2016.

5. Furthermore, Club E and Club C agreed upon in a separate transfer agreement dated 31 January 2016 on the following clause: ‘It is acknowledged that Club C shall make no deductions from the sums payable to Club E hereunder in respect of solidarity contribution under article 21 and Annex 5 of […] the FIFA Regulations. It is however further agreed that Club E shall be solely responsible without any contribution from Club C for the distribution of the solidarity due to any and all clubs, teams, national associations or other entities […] under the FIFA Regulations […] Club E shall indemnify Club C immediately on demand in an amount at least equal to any solidarity (and interest thereon) which Club C is required to pay to any Claimant in respect of the Player, […] as a result of any failure by Club E to have distributed to requisite Solidarity in accordance with this clause’.

6. In addition, Club G and Club C in a separate agreement dated also 31 January 2016 agreed upon the following clause: ‘It is acknowledged that Club C shall make no deductions from the sum payable to Club G hereunder in respect of solidarity contribution under article 21 and Annex 5 of […] the FIFA Regulations. It is however further agreed that Club G shall be solely responsible without any contribution from Club C for the distribution of the solidarity due to any and all clubs, teams, national associations or other entities […] under the FIFA Regulations […] Club G shall indemnify Club C immediately on demand in an amount at least equal to any solidarity (and interest thereon) which Club C is required to pay to any Claimant in respect of the Player, […] as a result of any failure by Club E to have distributed to requisite Solidarity in accordance with this clause’.

7. According to TMS, the player was registered with Club C on 2 February 2016 and his ITC was issued on 1 February 2016.

8. On 9 October 2017, Club A lodged a claim in front of FIFA claiming its proportion of the solidarity contribution in connection with the transfer of the player from Club G to Club C.

9. In particular, Club A requests 30% of 5% of the alleged transfer compensation of EUR 1,000,000, plus 15% interest p.a. as from the due date, as well as the amount of 10,000 as ‘cost of litigation/legal fees’.

10. In its reply to Club A’ claim, Club C explains that it concluded two separate agreements in order to facilitate the loan transfer of the player to its club. Moreover, Club C confirms to have paid an amount of EUR 555,000 to Club G, as well as an amount of EUR 1,000,000 to Club E. Moreover, Club C explains that these amounts were to be considered as net amounts, because ‘the other club did not permit Club C to deduct any sums for Solidarity Contribution from the fees payable and instead agreed to be responsible for such payments from the fees received’.

11. In addition, Club C further explains that it is aware of the fact that in principle, the player’s new club would be responsible for the distribution of the solidarity contribution, but that in this specific case, Club G and Club E should be ‘obliged to settle such claims’.

12. After Club C, Club G and Club E were informed about the jurisprudence of FIFA in matters like the case at hand, the following statements were received from the respective parties:

 Club C explained that it received correspondence from Club A, in which it was explained that Club G already distributed the solidarity contribution to Club A. Furthermore, it reiterates its previous arguments and asks for the rejection of Club A’ claim, as it should turn to Club E and Club G;

 Club G explained that it was responsible for the payment of solidarity contribution in connection with the transfer of the player from Club G to Club C, and explained that it already paid said amount to Club A;

 Club E confirmed that it agreed upon a transfer fee of EUR 1,000,000 for the loan of the player to Club C, however further brought forward the following arguments:

- Club C, as the player’s new club, is responsible for the payment of the solidarity contribution. In this respect, Club E explained that it may reimburse the amounts it had to pay ‘in accordance with the Agreement concluded between Club E and Club C’.

- Further, Club E referred to a case with reference number XXX, currently pending before FIFA’s DRC (Claimant: Club A, Respondent: Club E), in connection with the transfer of the player from the Club of Country L, Club M to Club E in August 2013. Club E explains that in said case, it contested the validity of several player passports submitted by the Claimant, as they contain contradictory information regarding the player’s career. In this respect, Club E submitted a declaration of the player dated 20 September 2013, in which it is confirmed that he ‘never played in Club N in my football career’.

- Finally, Club E argues that it deems that Club A’ claim is time-barred.

13. Despite being invited to do so, Club A did not submit its replica.

II. Considerations of the Dispute Resolution Chamber

1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or Chamber) analysed whether it was competent to deal with the case at hand. In this respect, the Chamber took note that the present matter was submitted to FIFA on 9 October 2017. Consequently, the Rules governing the procedures of the Players’ Status Committee and the Dispute Resolution Chamber (edition 2017; hereinafter: Procedural Rules) are applicable to the matter at hand (cf. art. 21 of the Procedural Rules).

2. Subsequently, the members of the Chamber referred to art. 3 par. 1 of the Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition 2018), the Dispute Resolution Chamber is competent to decide on the present matter, which concerns a dispute relating to the solidarity mechanism involving four clubs belonging to different associations.

3. Furthermore, the DRC 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 members referred, on the one hand, to art. 26 par. 1 and 2 of the Regulations on the Status and Transfer of Players (editions 2015, 2016 and 2018) and, on the other hand, to the fact that the present claim was lodged on 9 October 2017 and that the player was registered with Club C on 2 February 2016. In view of the aforementioned, the Chamber confirmed that the 2015 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. In addition, taking intonconsideration the aforementioned dates of the claim and the registration of the player, as well as the objection of Club E in point I.12 above in fine, the DRC confirmed that the claim of Club A was lodged within the period of 2 years as from the fact giving right to the dispute – i.e. the due dates of the contingent payments plus 30 days –, in accordance with art. 25 par. 5 of the Regulations as well as art. 2 par. 1 of Annexe 5 of the Regulations.

4. The competence of the DRC and the applicable regulations having been established, the DRC entered into the substance of the matter. In this respect, the Chamber started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Chamber emphasised that in the following considerations it will refer only to the facts, arguments and documentary evidence, which it considered pertinent for the assessment of the matter at hand.

5. In this respect, the DRC noted that Club A claimed the payment of the amount of EUR 15,000 as solidarity contribution from Club C, corresponding to 30% of the 5% solidarity contribution of a total transfer fee of EUR 1,000,000.

6. In addition to the above, and referring to art. 6 par. 3 of Annexe 3 of the Regulations, the Chamber took into account that according to the information contained in the TMS, the player was loaned from Club E to Club G, however that it was agreed upon between the parties that the loan of the player would be transferred to Club C. In order to facilitate said loan, Club E, Club G and Club C agreed upon a transfer compensation amounting to EUR 1,555,555, as follows: (i) an amount of EUR 555,555 to be paid by Club C to Club G, as compensation for the early termination of the loan of the player at Club G, due on 2 February 2016, as well as (ii) an amount of EUR 1,000,000 to be paid by Club C to Club E, as transfer compensation for the loan transfer of the player to Club C, payable in five instalments of EUR 200,000 each, due on 5 February 2016, 5 March 2016, 5 April 2016, 5 May 2016 and 5 June 2016.

7. Furthermore, the DRC noted that Club C argued that it is aware that in principle, the player’s new club would be responsible for the distribution of the solidarity contribution, but that in this specific case, with respect to the claim lodged by Club A, Club G and Club E should be ‘obliged to settle such claims’.

8. What is more, the DRC also took note that Club G was of the opinion that it should not be involved in the matter at hand, as it already paid the relevant part of the solidarity contribution to Club C. Moreover, the Chamber noted that Club E is of the opinion that Club C, as the player’s new club, is responsible for the payment of the solidarity contribution as well as that the several player passports submitted by Club A contain contradictory information regarding the player’s career, making the latter uncertain.

9. In view of the above, the Chamber deemed fundamental to refer to the timeline of the events occurred in the present proceedings in order to determine whether Club A is in fact entitled to solidarity contribution. First of all, the DRC recalled that, when lodging its initial claim on 9 October 2017, Club A submitted 3 different player passports, respectively dated 17 April, 24 April and 19 September 2016, all containing different information regarding the player’s career and the clubs with which he was registered. Whereas the first two player passports do not contain any record of Club A at all, only in the third player passport, issued on 19 September 2016, i.e. more than 7 months after the transfer on loan basis of the player to Club C, Club A was mentioned as one of the player’s previous clubs, which apparently had trained him during a specific period of time.

10. In continuation, the members of the Chamber took due note that, according to the aforementioned passports, on 2 February 2016, the day on which the player was transferred on loan basis to Club C, no information regarding a possible registration of the player with Club A was available to the parties involved.

11. Moreover, turning its attention to the claim of Club A and the allegations contained therein, the Chamber wished to point out that in accordance with the legal principle of the burden of proof as contained in art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact shall carry the burden of proof. In view of the foregoing and considering the claim of Club A, the Chamber underscored that it was for Club A to prove that the player was indeed registered with its club. In this respect, the members of the Chamber evaluated the documentation on file and were of the opinion that, apart from 3 player passports with contradictory information and a general statement of the Football Federation K issued only subsequently, Club A did not submit any further documentation supporting the allegation that the player had indeed played for the club. As a result, the members of the Chamber deemed that Club A failed to submit convincing documentary evidence, demonstrating that the player was indeed registered for its club, and for which period of time.

12. In view of the aforementioned, the DRC carefully considered that by the time the player was transferred on loan to Club C, the latter club could not have been aware of any possible obligations to pay solidarity contribution to Club A, as said club was only mentioned for the first time by the Football Federation K in a player passport dated 19 September 2016. Consequently, the Chamber unanimously decided that Club C could not be obliged to pay solidarity contribution as the player’s career, in particular his registration with Club A, could not be established with full certainty based on the documentation on file.

13. In view of all the above, the Dispute Resolution Chamber rejected Club A’s claim for solidarity contribution, due to the lack of consistent and clear documentary evidence allowing this Chamber to establish beyond doubt his registration with the claimant and, if so, to subsequently calculate any amount of solidarity contribution possibly due.

14. In continuation, the deciding authority 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.

15. In this respect, the Chamber reiterated that the claim of Club A is rejected and established that as a result, Club A has to bear the costs of the current proceedings in front of FIFA.

16. According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

17. The amount in dispute to be taken into consideration in the present proceedings amounts to EUR 15,000 related to the claim of Club A. Therefore, the Chamber concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A).

18. Considering that the case at hand showed very particular factual difficulties and some legal complexity, as well as the fact that the claim of Club A is fully rejected, the Chamber determined the final amount of costs of the current proceedings to the amount of CHF 5,000, which shall be entirely borne by Club A.

19. In view of all of the above, the Chamber concluded that the amount of CHF 5,000 has to be paid by Club A to cover the costs of the present proceedings.

III. Decision of the Dispute Resolution Chamber

1. The claim of the Claimant, Club A, is rejected.

2. The final costs of the proceedings in the amount of CHF 5,000 are to be paid by the Claimant, within 30 days of notification of the present decision, to FIFA to the following bank account with reference to case no. XXX:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

*****

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

Avenue de Beaumont 2

1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Dispute Resolution Chamber:

Omar Ongaro

Football Regulatory Director

Enclosed: CAS directives