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 24 August 2020

Decision of the

Single Judge of the sub-committee of the Dispute Resolution Chamber

passed on 24 August 2020,

regarding solidarity contribution for the transfer of the player Mark Daniel Milligan

BY:

Geoff Thompson (England), Single Judge of the sub-committee of the Dispute Resolution Chamber

CLAIMANT:

Sydney FC, Australia

RESPONDENT:

Al Ahli, Saudi Arabia

I. FACTS OF THE CASE

1. According to the player’s passport issued by the Football Federation Australia Limited, the player, Mark Daniel Milligan (hereinafter: the player), born on 4 August 1985, was registered with the Australian club Sydney FC (hereinafter: the Claimant) as from 5 May 2005 until 30 March 2006 and from 25 May 2005 until 30 April 2008.

2. The football seasons in Australia during the period of time the player was registered with Sydney FC started in October and ended in May the next calendar year.

3. According to the information contained in the Transfer Matching System (TMS), the Australian club, Melbourne Victory FC, and the Saudi Arabian club, Al Ahli (hereinafter: the Respondent), agreed on 29 January 2018 upon the permanent transfer of the player against a compensation amounting to USD 600,000, to be paid “in one lump sum payment immediately following the signing of this Agreement and upon Melbourne Victory presenting to Al Ahli a valid invoice”.

4. In addition, the above-mentioned clubs agreed upon the following (art. 3 of the transfer agreement):

“The amount as detailed in article 2 of this Agreement is inclusive of the Solidarity Contribution as mentioned in article 21 and Annex 5 of the FIFA Regulations on the Status and Transfer of Players (herein referred to as ‘RSTP’. In this instance Melbourne Victory assumes full responsibility for the distribution and payment of the solidarity contribution to the entitled clubs.”

5. According to the TMS, the instruction date of the player’s permanent transfer to the Respondent was 1 February 2018.

6. On 20 February 2020, the Claimant lodged a claim in front of FIFA, requesting the proportion of the solidarity contribution in connection with the transfer of the player from Melbourne Victory FC to the Respondent. In particular, the Claimant requested the amount of USD 8,160, corresponding to 27.32% of the solidarity contribution, plus 5% interest p.a. “as of the due date”.

7. In its claim, the Claimant argued that it trained and educated the player for 664 days, from the season of his 19th birthday to the season of his 22nd birthday.

8. In light of the above, the Claimant considered to be entitled to receive the solidarity contribution arising from the international transfer of the player. In this regard, the Claimant held that it had “contacted the Respondent several times in order to ask for the pertaining payment, but to no success”.

9. In its reply dated 12 June 2020, the Respondent argued that the payment of the solidarity contribution lied with the former club, Melbourne Victory FC. In this respect, the Respondent referred to art. 3 of the transfer agreement according to which “Melbourne Victory assumes full responsibility for the distribution and payment of the solidarity contribution to the entitled clubs.”

10. In this context, the Respondent requested that the “claim must be referred to Melbourne Victory FC”.

II. CONSIDERATIONS OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DISPUTE RESOLUTION CHAMBER

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 case at hand. Taking into account the wording of art. 21 of the 2020 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter: the Procedural Rules), the 2019 edition of the Procedural Rules is applicable to the matter at hand.

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 August 2020). 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 August 2020) and considering that the instruction date of the player’s permanent transfer to the Respondent was 1 February 2018, the January 2018 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 Transfer Matching System (TMS).

5. The Single Judge started by acknowledging that the Claimant is requesting the payment of USD 8,160, corresponding to 27.32% of the solidarity contribution, plus 5% interest p.a. “as of the due date” from the Respondent as solidarity contribution in connection with the international transfer of the professional player, Mark Daniel Milligan, from Melbourne Victory FC to the Respondent.

6. Moreover, the Single judge duly noted that, according to the relevant transfer agreement dated 29 January 2018, the player was transferred on a permanent basis from Melbourne Victory FC to the Respondent for the amount of USD 600,000, to be paid on 1 February 2018.

7. On the other hand, the Single Judge acknowledged that the Respondent argued that it was not its responsibility to pay the solidarity contribution pursuant to art. 3 of the transfer agreement which provided that “Melbourne Victory assumes full responsibility for the distribution and payment of the solidarity contribution to the entitled clubs.”

8. Therefore, the Single Judge concluded that the underlying issue in the present matter was to establish whether the Respondent had to pay the solidarity contribution to the Claimant or not.

9. In this regard, 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.

10. Having established the foregoing, the Single Judge recalled that, according to the player passport issued by the Football Federation Australia Limited, the Claimant was involved in the training and education of the player.

11. 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.

12. Furthermore, 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.

13. In this respect, the Single Judge recalled that, according to the player passport issued by the Football Federation Australia Limited, the player, born on 4 August 1985, was registered with the Claimant as from 5 May 2005 until 30 March 2006 and from 25 May 2005 until 30 April 2008.

14. In this respect 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 5 May 2005 until 30 March 2006 and from 25 May 2005 until 30 April 2008. In light of the foregoing, the Single judge decided that the Respondent is liable to pay the relevant proportion of the 5% solidarity contribution to the Claimant.

15. In continuation, the Single Judge took note of the Respondent’s position according to which Melbourne Victory FC should pay the solidarity contribution in connection with the player.

16. In this respect, the Single judge was eager to emphasize that the solidarity mechanism is a principle well-established in the Regulations, from which the parties signing a transfer or loan contract cannot derogate through the contents of a contract. In other words, the obligation to distribute solidarity contribution cannot be set aside by means of a contract concluded between the clubs involved in a player’s transfer. Thus, as for the distribution of the solidarity contribution, the amount to be taken into account when calculating the solidarity contribution payments due to the club(s) involved in the player’s education and training, is the amount actually agreed upon as the total compensation payable by the new club to the former club, regardless of any provision to the contrary stipulated in the transfer or loan contract.

17. Subsequently and directly related to the above, the Single judge referred to the well-established jurisprudence of the DRC which has to be applied in the present matter, in accordance with which the player’s new club is ordered to remit the relevant proportion(s) of the 5% solidarity contribution to the club(s) involved in the player’s training and education in strict application of art. 1 and art. 2 of Annexe 5 of the Regulations.

18. This being said, the Single Judge drew the parties’ attention to the fact that they are in principle entitled to claim from any involved clubs in the dispute the reimbursement of any amounts that they consider to have paid in excess as solidarity contribution, in front of FIFA competent deciding bodies.

19. Therefore, the Single Judge concluded that the Claimant is entitled to receive solidarity contribution in relation to the transfer of the player from Melbourne Victory FC to the Respondent.

20. 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 USD 8,160 as solidarity contribution for the player, Mark Daniel Milligan.

21. 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 jurisprudence, interest at the rate of 5% on the amount of USD 8,160 as from 1 March 2018 until the date of effective payment.

22. Finally, taking into account the consideration under number II./3. above, the Single Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from the failure of the concerned party to pay the relevant amounts of outstanding remuneration and/or compensation in due time.

23. In this regard, the Single Judge established that, in virtue of the aforementioned provision, it has competence to impose a sanction on the Respondent. More in particular, the Single Judge pointed out that, against clubs, the sanction shall consist in a ban 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.

24. Therefore, bearing in mind the above, the Single Judge decided that, in the event that the Respondent does not pay the amount due to the Claimant within 45 days as from the moment in which the Claimant, following the notification of the present decision, communicates the relevant bank details to the Respondent, a ban from registering any new players, either nationally or internationally, for the maximum duration of three entire and consecutive registration periods shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the Regulations.

25. Finally, the Single Judge recalled that the above-mentioned sanction will be lifted immediately and prior to its complete serving upon payment.

III. DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE DISPUTE RESOLUTION CHAMBER

1. The claim of the Claimant, Sydney FC, is accepted.

2. The Respondent, Al Ahli, has to pay to the Claimant, USD 8,160, as solidarity contribution plus 5% interest p.a. as from 1 March 2018 until the date of effective payment.

3. The Claimant is directed to immediately and directly inform the Respondent of the relevant bank account to which the Respondent must pay the due amount.

4. The Respondent shall provide evidence of payment of the due amount in accordance with this decision to psdfifa@fifa.org, duly translated, if applicable, into one of the official FIFA languages (English, French, German, Spanish).

5. 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.

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:

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 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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