F.I.F.A. – Dispute Resolution Chamber / Camera di Risoluzione delle Controversie – solidarity contribution / contributo di solidarietà – (2019-2020) – fifa.com – atto non ufficiale – Decision 18 July 2019

Decision of the

Single Judge of the sub-committee of the Dispute Resolution Chamber (DRC)

passed in Zurich, Switzerland, on 18 July 2019,

by Daan de Jong (The Netherlands) ,

Single Judge of the sub-committee of the DRC,

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 Player E

I. Facts of the case

1. According to the player passport issued by the Football Federation of Country B, the player, player E (hereinafter: the player), born on 1 November 1992, was registered with its affiliated club, Club A (hereinafter: the Claimant) as from 29 July 2007 until 30 July 2015.

2. The football seasons in Country B during the period of time the player was registered with the Claimant started in January and ended in December of the same calendar year.

3. According to the information available in the Transfer Matching System (TMS), on 19 July 2016 the club of Country F, club G, concluded a loan transfer agreement with the club of Country D, Club C (hereinafter: the Respondent), for the loan of the player to the Respondent for a loan transfer fee in the amount of EUR 800,000 net, payable as follows:

a. EUR 400,000 “net” on 31 August 2016;

b. EUR 400,000 “net” on 31 January 2017.

4. Moreover, the loan agreement further stipulated that, should the Respondent exercise the option for the permanent transfer of the player, it would undertake to pay club G a fixed transfer fee of EUR 800,000 net, payable as follows:

a. EUR 400,000 “net” on 31 August 2017;

b. EUR 400,000 “net” on 31 January 2018.

5. Furthermore, the loan transfer agreement stipulated that “net amount means the amount received by [the Respondent], i.e. discounted all the taxes, charges, commission fees, solidarity contributions and training compensation”.

6. According to the information available in the TMS, the player was registered with the Respondent on 28 July 2016.

7. Equally, according to the information available in the TMS, on 31 March 2017, club G and the Respondent signed an “Amendment Agreement” by which the player was transferred permanently to the Respondent.

8. On 13 April 2018, amended on 28 February 2019, the Claimant contacted FIFA claiming its proportion of the solidarity contribution in connection with the aforementioned loan transfer and permanent transfer. In particular, the Claimant requested 77.9% of the 5% of both the total loan transfer fee and the permanent transfer fee, plus 5% interest p.a. as from the due dates until the date of effective payment. In other words, as per the Claimant, “the total amounts to be considered for the solidarity contribution calculations should be 84,210.526 EUR pertaining to each the loan and the permanent transfer fees”.

9. In reply to the original claim lodged by the Claimant, the Respondent stated that it is willing to pay the referred amount of solidarity, “as soon as its current situation normalizes”.

10. In reply to the amended claim lodged by the Claimant, the Respondent acknowledged that it “has the responsibility to pay the referred amount of solidarity contribution”, and that it is “trying to demonstrate its willingness to do so, as soon as [the] current political situation in Country B normalizes”.

II. Considerations of the Single Judge of the sub-committee of the DRC

1. First of all, the Single Judge of the sub-committee of the DRC (hereinafter also referred to as: Single Judge) analysed whether he was competent to deal with the matter at stake. In this respect, the Single Judge took note that the present matter was submitted to FIFA on 13 April 2018. Consequently, the Single Judge concluded that the 2018 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: 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 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 (edition June 2019). 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, the Single Judge is competent to decide on the present dispute relating to solidarity mechanism between clubs belonging to different associations handled through TMS.

3. Furthermore, 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, the Single Judge confirmed that in accordance with art. 26 par. 1 and par. 2 of said Regulations (edition 2016, 2018 and June 2019) and considering that the player was registered with the Respondent on 28 July 2016, the 2016 edition of the Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand as to the substance.

4. The competence of the Single Judge and the applicable regulations having been established, the Single Judge entered into the substance of the matter. In this respect, the Single Judge started by acknowledging all the above-mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Single Judge 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. In particular, the Single Judge 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 TMS.

5. The Single Judge started by acknowledging that the Claimant is requesting the payment of 77.9% of the 5% of both the total loan transfer fee and the permanent transfer fee, plus 5% interest p.a. as from the due dates until the date of effective payment, from the Respondent as solidarity contribution in connection with the international transfer of the professional player, Player E, from club G to the Respondent.

6. Moreover, the Single Judge duly noted that, according to the relevant loan agreement dated 19 July 2016, the player was transferred from club G to the Respondent for a loan transfer fee in the amount of EUR 800,000 net, payable as follows: the amount of EUR 400,000 “net” on 31 August 2016 and the amount of EUR 400,000 “net” on 31 January 2017. The loan agreement further stipulated that, should the Respondent exercise the option for the permanent transfer of the player, it would undertake to pay club G a fixed transfer fee of EUR 800,000 net, payable as follows: the amount of EUR 400,000 “net” on 31 August 2017 and the amount of EUR 400,000 “net” on 31 January 2018.

7. In continuation, the Single Judge emphasised that, as established in art. 21 in combination with Annexe 5 of the Regulations, 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 to be distributed by the new club as solidarity contribution to the club(s) involved in the training and education of the player in proportion to the number of years the player has been registered with the relevant clubs between the sporting seasons of his 12th and 23rd birthday.

8. In continuation, the Single Judge took note that the Respondent, for its part, did not contest the substance of the claim, limiting its reply to express its willingness to amicably settle the matter as soon as the current political situation in Country B normalizes.

9. Having said that, the Single Judge recalled that, according to the player passport issued by the Football Federation of Country B, the Claimant was involved in the training and education of the player.

10. On account of the above, the Single Judge decided that, in accordance with art. 21 in combination with Annexe 5 of the Regulations, the Respondent must pay the relevant proportion of the solidarity contribution to the Claimant.

11. Having established the above, the Single Judge referred to art. 1 of Annexe 5 of the Regulations, which provides the figures for the distribution of the solidarity contribution, according to the period of time during which the player was registered with the relevant club.

12. In this respect, the Single Judge recalled that, according to the player passport issued by Football Federation of Country B, the player, born on 1 November 1992, was registered with the Claimant as from 29 July 2007 until 30 July 2015.

13. On account of the above and in accordance with art. 1 of Annexe 5 of the Regulations, the Single Judge considered that the Claimant is, thus, entitled to receive solidarity contribution for the period as from 29 July 2007 until 30 July 2015, i.e. during 5 months of the season of the player’s 15th birthday, during the entire seasons of the player’s 16th, 17th, 18th, 19th, 20th, 21st, 22nd birthday and during 7 months of the season of the player’s 23rd birthday. In terms of the percentage of the 5% solidarity contribution, the Single Judge calculated that, on a pro rata basis, this corresponds to 77.9% of the 5% of the total loan and permanent transfer compensation, as claimed by the Claimant.

14. In this regard, the Single Judge noted that, according to the TMS, the player was first transferred on loan and eventually permanently to the Respondent. Consequently, the Respondent was obliged to pay the loan transfer fee of EUR 800,000 net, as well as the permanent transfer fee of EUR 800,000 net. In other words, the Respondent had to pay a total transfer fee of EUR 1,600,000 net. Moreover, the Single Judge recalled that the transfer agreement further stipulated that net amount means the amount received by the Respondent, i.e. discounted all the taxes, charges, commission fees, solidarity contributions and training compensation. Thus, according to the transfer agreement, the abovementioned amount of EUR 1,600,000 net equaled 95% of the total transfer fee, the total gross transfer fee being EUR 1,684,210.52.

15. Therefore, in view of the Claimant’s request and of the constant jurisprudence of the DRC in this regard, the amount of solidarity contribution due to the Claimant is to be calculated on the basis of an amount of EUR 1,684,21.50. In this regard, the Single Judge concluded that the Claimant is entitled to receive EUR 65,608, as solidarity contribution in relation to the transfer of the player from club G to the Respondent.

16. Furthermore, and taking into consideration both the claim of the Claimant as well as art. 2 par. 1 of Annexe 5 of the Regulations, the Single Judge decided that the Respondent has to pay, in conformity with the longstanding practice of the DRC, interest at the rate of 5% p.a. as follows:

a. on the amount of EUR 16,402 as from 1 October 2016 until the date of effective payment;

b. on the amount of EUR 16,402 as from 3 March 2017 until the date of effective payment;

a. on the amount of EUR 16,402 as from 1 October 2017 until the date of effective payment;

b. on the amount of EUR 16,402 as from 3 March 2018 until the date of effective payment.

17. On account of the above, in accordance with art. 21 in combination with Annexe 5 of the Regulations, the Single Judge decided that the Respondent is liable to pay to the Claimant the amount of EUR 65,608, plus 5% interest p.a. as of the abovementioned due dates, as solidarity contribution for the player, player E.

18. Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with 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 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.

19. In respect of the above, the Single Judge held that the amount to be taken into consideration in the present proceedings is EUR 65,608, related to the claim of the Claimant. Consequently, the Single Judge concluded that the maximum amount of costs of the proceedings corresponds to 10,000 (cf. table in Annexe A of the Procedural Rules).

20. As a result, considering the degree of success, the Single Judge determined the final costs of the current proceedings to the amount of 10,000, which shall be paid by the Respondent as follows: the amount of 2,000 to the Claimant and the amount of 8,000 to FIFA.

III. Decision of the Single Judge of the sub-committee of the DRC

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

2. The Respondent, Club C, has to pay to the Claimant, within 30 days of the date of notification of this decision, the amount of EUR 65,608, plus 5% interest p.a. until the date of effective payment as follows:

a. as from 1 October 2016, on the amount of EUR 16,402;

b. as from 3 March 2017, on the amount of EUR 16,402;

c. as from 1 October 2017, on the amount of EUR 16,402;

d. as from 3 March 2018, on the amount of EUR 16,402.

3. In the event that the aforementioned sum plus interest is not paid by the Respondent within the stated time limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for consideration and a formal decision.

4. The final costs of the proceedings in the amount of 10,000 are to be paid by the Respondent, within 30 days of notification of the present decision, as follows:

4.1. The amount of 8,000 to FIFA to the following bank account with reference to case no. TMS 2637/osv:

UBS Zurich

Account number 366.677.01U (FIFA Players’ Status)

Clearing number 230

IBAN: CH 27 0023 0230 3666 7701U

SWIFT: UBSWCHZH80A

4.2. The amount of 2,000 to the Claimant.

5. The Claimant is directed to inform the Respondent immediately and directly of the account number to which the remittances under points 2. and 4.2. above are to be made and to notify the Single Judge of the sub-committee of the DRC of every payment received.

*****

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 (CAS)

Avenue de Beaumont 2

CH-1012 Lausanne

Switzerland

Tel: +41 21 613 50 00

Fax: +41 21 613 50 01

e-mail: info@tas-cas.org

For the Single Judge of the sub-committee of the DRC:

Emilio García Silvero

Chief Legal & Compliance Officer

Encl.: CAS directives