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 7 June 2018

Decision of the sub-committee

of the Dispute Resolution Chamber (DRC)

passed in Zurich, Switzerland, on 7 June 2018,

in the following composition:

Geoff Thompson (Country H), Chairman

Roy Vermeer (Netherlands), member

Pavel Pivovarov (Russia), member

on the claim presented by the club,

Club A, Country B

as Claimant

against the club,

Club C, Country D

as Respondent

regarding solidarity contribution in connection

with the transfer of the Player E

I. Facts of the case

1. According to the player passport issued by the Football Federation of Country B, Player E (hereinafter: Player E), born on 24 February 1987, was registered with its affiliated club, Club A (hereinafter: the Claimant), as from 31 August 2006 until 30 June 2007.

2. The football season in Country B runs from 1 July until 30 June of the following year.

3. According to the information contained in the Transfer Matching System (TMS), Player E was engaged out of contract free of payment from the club from country B, Club F (hereinafter: Club F), by the club from country D, Club C (hereinafter: the Respondent), and registered with said club from country D on 30 July 2015.

4. Also according to the TMS, on 20 July 2015 Club F and Player E concluded a financial agreement, conditional to the transfer of the player, Player G (hereinafter: Player G), from the Respondent to Club F as well as to the transfer of Player E from Club F to the Respondent. Under said financial agreement Club F undertook to pay the following amounts to Player E:

o a collective bonus of EUR 180,000 net relating to the 2013/2014 season, payable in instalments;

o EUR 433,366.22 net, payable in instalments; and

o a salary complement for the season 2015/2016 of EUR 475,000 net, payable only if the player is under employment contract with the Respondent on 11 January 2016. This part is referred to as an agreement between the parties with respect to a salary complement awarded to the player as an “incentive” for the player’s transfer to the Respondent.

5. Likewise, the financial agreement stipulated that “[Club F] and [the Respondent], with the consent of [Player E], reached an agreement for the definitive transfer of the player’s federative rights”.

6. Equally, according to TMS, on 20 July 2015, Club F and the Respondent agreed upon the transfer of Player G from the Respondent to Club F against the payment of a fixed transfer compensation amounting to EUR 10,000,000 as well as a conditional transfer fee of up to EUR 3,000,000.

7. On 11 July 2017, the Claimant lodged a claim before FIFA claiming its proportion of the solidarity contribution in connection with the transfer of Player E from Club F to the Respondent. In particular, the Claimant requested 9.84% of the 5% of the alleged transfer compensation, plus 5% interest p.a. as of the 31st day after the registration of Player E with the Respondent and that the latter bear the Claimant’s legal fees.

8. In this context, the Claimant stated that, according to mass media articles, the links to which it included in its claim, the transfer of Player E from Club F to the Respondent was connected to the transfer of Player G from the Respondent to Club F. In particular, the Claimant held that, in addition to the payment of EUR 12,000,000 by Club F to the Respondent, the transfer of Player E to the Respondent was part of the transaction relating to the transfer of Player G from the Respondent to Club F.

9. Furthermore, the Claimant referred to jurisprudence of the Dispute Resolution Chamber (DRC) regarding the applicability of the solidarity mechanism provisions to an exchange of players and the related calculation and stated that, in the present matter, according to said jurisprudence, the amounts to be considered for the calculation are the indemnification clause of the employment contract signed between Player E and Club F as well as the nearest transfer of Player E to a third club.

10. In this respect, the Claimant argued that in January 2016 Player E was transferred from the Respondent to the club from country H, Club J, for an alleged compensation amounting to EUR 4,000,000.

11. In its reply, the Respondent rejected the Claimant’s claim by stating that it acquired Player E out of contract free of payment and that he was not a part of an exchange of players. In this respect, the Respondent submitted the TMS report of the transfer of Player E to the Respondent as well as a copy of FIFA’s letter relating to a solidarity contribution claim lodged by the club from country B, Club A, for the transfer of Player E from Club F to the Respondent, according to which Player E was transferred out of contract free of payment, and argued that, since Player E joined the Respondent as a “free agent”, no transfer took place and therefore, art. 21 of the Regulations on the Status and Transfer of Players is not applicable.

12. As to the mass media articles the Claimant referred to, the Respondent submitted that they are inaccurate and irrelevant and that only the TMS contains the official details of a player’s move.

13. Lastly, the Respondent alleged that according to jurisprudence of the DRC there is no basis for a claim when a claimant fails to provide the necessary evidence to corroborate its allegation that a player was supposedly a part of a “cash plus player” transfer. In this respect, the Respondent held that the Claimant failed to prove that Player E was transferred or exchanged and that, as a result, its claim shall be rejected.

II. Considerations of the sub-committee of the DRC

1. First of all, the sub-committee of the Dispute Resolution Chamber (hereinafter: the sub-committee) analysed whether it was competent to deal with the case at hand. In this respect, it took note that the present matter was submitted to FIFA on 11 July 2017. Consequently, the 2017 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 sub-committee 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. 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 (edition 2018), the sub-committee is competent to decide on the present dispute relating to solidarity contribution between clubs belonging to different associations handled through TMS.

3. In this respect, the sub-committee was eager to emphasize that contrary to the information contained in FIFA’s letter dated 1 June 2018, by means of which the parties were informed of the composition of the sub-committee, the member Wouter Lambrecht refrained from participating in the deliberations in the case at hand due to professional circumstances. In order to comply with the prerequisite of equal representation of club and player representatives, also the member Jon Newman refrained from participating and thus the sub-committee adjudicated the case in presence of three members.

4. Furthermore, the sub-committee 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 (edition 2018), and considering that the player was registered with the Respondent on 30 July 2015, 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.

5. The competence of the sub-committee and the applicable regulations having been established, the sub-committee entered into the substance of the matter. In this respect, the sub-committee started by acknowledging all the above-mentioned facts as well as the arguments and documentation submitted by the parties. However, the sub-committee emphasized 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. In particular, the sub-committee recalled that in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the scope of proceedings pertaining to the application of the Regulations, any documentation or evidence generated or contained in the Transfer Matching System (TMS).

6. First of all, the sub-committee noted that the Claimant lodged a claim against the Respondent for payment of the relevant proportion of solidarity contribution in connection with the transfer of Player E from Club F to the Respondent. In particular, the sub-committee duly noted that the Claimant alleged that the transfer of Player E from Club F to the Respondent was connected to the transfer of Player G from the Respondent to Club F, namely, in addition to the payment of an alleged transfer compensation of EUR 12,000,000 to the Respondent, Club F had allegedly agreed to a free transfer of Player E to the Respondent in order to acquire the services of Player G from the Respondent. According to the Claimant, such constellation constitutes an exchange of players, thereby referring to jurisprudence of the DRC.

7. Likewise, the sub-committee acknowledged that the Claimant held that, therefore, the relevant value of Player E shall be calculated considering the compensation clause of the employment contract signed between Player E and Club F as well as the nearest transfer of Player E to a third club.

8. The sub-committee further noticed that the Claimant, in support of its position, referred to mass media articles, links to which only were submitted, which, supposedly, referred to the transfer of Player E from Club F to the Respondent being connected to the transfer of Player G in the opposite direction.

9. In continuation, the sub-committee took due note that the Respondent rejected the Claimant’s claim denying that Player E was part of an exchange of players. The members of the sub-committee took note of the relevant TMS report submitted by the Respondent, according to which it engaged Player E out of contract free of payment. The sub-committee further noted the Respondent’s argument that, as a result of the player being a “free agent”, no solidarity contribution is due.

10. In light of the foregoing, the sub-committee deemed that it had to establish as to whether an obligation to distribute a proportion of the solidarity contribution had arisen out of the transfer of Player E from Club F to the Respondent.

11. In this respect, and first of all, the sub-committee made reference to art. 21 of the Regulations, according to which any club that has contributed to the education and training of a player shall receive a proportion of the compensation paid to the player’s former club.

12. Consequently, the sub-committee went on to examine as to whether compensation was in fact paid in connection with the transfer of Player E from his former club, Club F, to the Respondent.

13. The sub-committee firstly recalled the principle of the burden of proof, as established in art. 12 par. 3 of the Procedural Rules, according to which any party claiming a right on the basis of an alleged fact shall carry the burden of proof.

Accordingly, the sub-committee determined that the Claimant carried the relevant burden of proof.

14. Bearing in mind the aforementioned, the sub-committee went on to examine the documentation available to it. In this respect, the sub-committee stressed that, according to the information and documentation entered in TMS on the occasion of the transfer of Player E from Club F to the Respondent, which is reflected in the TMS report presented by the Respondent, the latter engaged Player E out of contract free of payment. Likewise, the sub-committee noted that the Respondent uploaded in TMS the aforementioned financial agreement signed between Club F and Player E as the proof of last contract end date. Furthermore, according to the relevant TMS report, the player mutually agreed an early termination with his former club, i.e. Club F.

15. Having said that, the sub-committee turned its attention to the Claimant’s allegation that Player E was part of the transfer transaction reached between Club F and the Respondent regarding Player G and that, in such framework, Player E allegedly was attributed an economic value, allegedly resulting in the Respondent’s obligation to pay solidarity contribution.

16. In this context, the sub-committee took into account that Club F and Player E mutually agreed upon the termination of their employment relationship. Similarly, the sub-committee pointed out that the transfer agreement signed by and between Club F and the Respondent relating to the transfer of Player G from the Respondent to Club F, which is available in TMS, does not contain any reference to Player E.

17. Having established the above, the sub-committee acknowledged that a transfer contract, which deals with a mutual exchange of obligations between the contractual parties involved, can, inter alia, involve the payment of a fee or indeed be in the form of an exchange of players. However, the sub-committee considered that, in the matter at hand, no such mutual exchange of obligations with respect to Player E had been agreed upon by and between Club F and the Respondent. Indeed, Player E was engaged by the Respondent out of contract free of payment and the transfer agreement relating to Player G does not include any obligation relating to Player E. What is more, the sub-committee agreed that the links to mass media articles presented by the Claimant cannot be considered sufficient evidence corroborating the Claimant’s allegations.

18. As a consequence of the aforementioned, the sub-committee concluded that the transfers of the players Player E and Player G were two separate transfers and, thus, had to reject the Claimant’s allegation that Player E was part of the transfer transaction reached between Club F and the Respondent regarding Player G.

19. Consequently, and with reference to art. 21 of the Regulations, the sub-committee held that there was no basis for the Claimant’s claim for solidarity contribution against the Respondent in relation with Player E, and, therefore, decided to reject the Claimant’s claim.

20. Lastly, the sub-committee referred to art. 25 par. 2 of the Regulations as well as to art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the DRC relating to disputes regarding training compensation and the solidarity mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further stipulated that the costs are to be borne in consideration of the parties’ degree of success in the proceedings and, in accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be levied on the basis of the amount in dispute.

21. In respect of the above, the sub-committee held that the amount to be taken into consideration in the present proceedings related to the claim of the Claimant does not exceed CHF 50,000. Consequently, the sub-committee concluded that the maximum amount of costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).

22. As a result, considering the parties’ degree of success, the sub-committee determined the final costs of the current proceedings to the amount of CHF 4,000 which shall be borne by the Claimant.

*****

III. Decision of the sub-committee of the DRC

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

2. The final costs of the proceedings in the amount of CHF 4,000 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. XXXXXXX:

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 sub-committee of the DRC:

Omar Ongaro

Football Regulatory Director

Encl.: CAS directives

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