Solidarity Contribution
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the
Dis pute Res olution Cham ber (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 cas e
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”.
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
2
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.
Cons iderations of the S ingle Judge of the s ub-com m ittee 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.
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
3
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 abovementioned 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.
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
4
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.
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
5
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.
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
6
III.
Decision of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, Club A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant, w ithin 30 day s 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.
b.
c.
d.
as from 1 October 2016, on the amount of EUR 16,402;
as from 3 March 2017, on the amount of EUR 16,402;
as from 1 October 2017, on the amount of EUR 16,402;
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, w ithin 30 day s 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 m otiv ated 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
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
7
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: [email protected]
www.tas-cas.org
For the Single Judge of the sub-committee of the DRC:
Emilio García Silvero
Chief Legal & Compliance Officer
Encl.: CAS directives
Solidarity contribution for the player E
(Club A, Country B / Club C, Country D)
8