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 24 July 2019,
by Roy Verm eer (the Netherlands),
Single Judge of the sub-committee of the DRC,
on the claim presented by the club,
Club A, from country A
as Claimant
against the club,
Club B, country B
as Respondent
regarding solidarity contribution in connection with the transfer
of the player X
I.
Facts of the cas e
1.
According to the player passport and a confirmation issued by the Football
Association of country A, the player, Player X (hereinafter: the player), born on
15 January 1994, was registered with the club, Club A, from country A (hereinafter:
the Claimant) as from 1 September 2004 until 14 October 2014.
2.
Moreover, according to the confirmation received from the Football Association,
of country A the football season in country A during the period of time the player
was registered with the Claimant started on 1 October and ended on 30 September
of the following year.
3.
After having signed a first employment contract on 25 March 2016, the club, Club
Z, from country Z (hereinafter: Club Z) and the player signed a new employment
contract on 15 January 2017, valid as from 1 January 2017 until 30 June 2021
(hereinafter: the employment contract), which stipulated in its art. 9.2 the
following: “In case of a request the second party (the player) to leave the club
during the current term of the contract in this case he must pay the amount of $
6,500,000 (only six million and five hundred thousand US dollars) as a penal order
to achieve the application of the penalty clause thus the need for the player’s
commitment to: be informed of the company [ [Club Z] in writing 20 days before
the closing of the period under and record players. The payment of the penalty
clause before the…” (note: no further specification in the English text of the
second employment contract).
4.
On 17 January 2017, Club Z, from country Z concluded a loan transfer agreement
with the club, Club B, from country B (hereinafter: the Respondent), in order to
transfer the player from Club Z to the Respondent on a temporary basis as from 17
January 2017 until 30 June 2017. In this respect, Club Z and the Respondent agreed
upon a loan transfer compensation amounting to USD 1,000,000 to be paid by the
Respondent to Club Z.
5.
According to the player passport issued by the Football Association of country Z
dated 24 January 2017, uploaded in the context of the transfer instruction in
Transfer Matching System (TMS) regarding the loan transfer of the player from
Club Z to the Respondent, the player was registered with Club Z as from 7 January
2016 until 19 January 2017. This player passport does not contain any other
information regarding the registration of the player with any other clubs.
6.
Furthermore, according to the information contained in the TMS, the player was
registered with the Respondent on 24 January 2017.
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
2/11
7.
On 11 June 2017, the player sent a letter to Club Z titled “Subject: Termination of
a contract of Professional Football Player”, in which he referred to article 9.2 of
the new employment contract and notified the Respondent about its termination
of the latter pursuant to said article.
8.
On 21 June 2017, the player and Club Z signed a document titled “Termination
Agreement”, by means of which it was declared that the employment contract was
unilaterally terminated by the player in accordance with art. 9.2 of the contract
and the amount of “USD 5,500,000”, would be transferred from the account of
the player, or “who represents him” and it would be deposited in the account of
Club Z.
9.
On 23 June 2017, the Player and the Respondent signed an employment contract
valid as from 2 July 2017 until 20 June 2021.
10.
On 22 August 2018, the Claimant lodged a claim in front of FIFA against the
Respondent, claiming its proportion of the solidarity contribution in connection
with the loan transfer of the player from Club Z to the Respondent of
January 2017, as well as the ensuing permanent transfer of the player from Club Z
to the Respondent in June 2017. In particular, the Claimant requested 5% of the
total amount received by Club Z in the context of the loan and the subsequent
permanent transfer of the player, calculated by the Claimant in the amount of USD
365,000, plus 5% interest p.a. on said amount as from “the day it became due until
today”.
11.
According to the Claimant, before the end of the loan of the player from Club Z
to the Respondent, Club Z received offers from the Respondent, amongst other
clubs, for the definitive transfer of the player. The Claimant maintained that Club
Z informed both the player and the Respondent that should “the player wants to
leave…, the amount of 6.5 million USD has to be paid for the player to be
released”.
12.
In this context, the Claimant sustained that Club Z was paid the amount of
USD 6,500,000, in accordance with art. 9.2 of the employment contract it had
signed with the player on 15 January 2017, as a consequence of which the player
was released and, subsequently, permanently registered with the Respondent.
13.
Along this line, the Claimant was of the opinion that “(the player) could have not
afforded to pay the amount of the Buy-out clause, unless a third party club would
pay the amount of the Buy-out clause”.
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
3/11
14.
In this regard, the Claimant deemed to be entitled to receive solidarity
contribution on the basis of the loan from Club Z to the Respondent, as well as for
the subsequent permanent transfer from Club Z to the Respondent. The Claimant
held that the total amount paid as loan and transfer compensation by the
Respondent to Club Z was USD 7,300,000 and calculated the amount due as
solidarity contribution as USD 365,000, i.e. requesting 5% of the total transfer
compensation in the alleged amount of USD 7,300,000.
15.
The Respondent, on its part, rejected the Claimant’s claim.
16.
In its reply, as to the loan transfer of the player from Club Z, the Respondent
confirmed that it paid USD 1,000,000 as loan transfer compensation to Club Z,
however, it deemed that the Claimant is not entitled to receive solidarity
contribution and thus it was not obliged to pay it, since the player passport issued
by the Football Association of country Z uploaded in the TMS in the context of this
loan transfer “showed no clubs trained and educated the Player except the Former
Club”.
17.
Regarding the subsequent permanent transfer of the player from Club Z to the
Respondent, the Respondent explained that, on 21 June 2017, the player
terminated his employment relationship with Club Z. Furthermore, the
Respondent confirmed that, subsequently, i.e. 2 days later, it entered into the
second contract with the player.
18.
In this context, the Respondent argued that, when entering into the second
contract with the player, the latter did not move during the course of the contract
with Club Z and that it did not pay Club Z “any compensation except the loan fee”.
19.
Along this line, the Respondent sustained that solidarity contribution is not due
for the following reasons:
”
a) No transfer agreement is signed with Club Z;
b) The player has not moved during the course/before the expiry of his
employment contract with Club Z; and
c) No payment is paid by the Respondent to Club Z.”
20.
In its replica, the Claimant rejected Respondent’s argumentation and insisted on
its position.
21.
In its duplica, the Respondent reiterated its position rejecting the claim.
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
4/11
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: the
Single Judge) analysed which Procedural Rules were applicable to the matter at
hand. In this respect, it referred to art. 21 of the Rules Governing the Procedures
of the Players’ Status Committee and the Dispute Resolution Chamber (hereinafter:
the Procedural Rules) as well as to the fact that the present matter was submitted
to FIFA on 22 August 2018. Therefore, the Single Judge concluded that the 2018
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 he 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 June 2019) and considering that the
player was registered first time on loan with the Respondent on 24 January 2017
and was subsequently permanently transferred in June 2017, 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 5% of both the total loan transfer fee and the subsequent permanent
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
5/11
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 X, from Club Z to the
Respondent.
6.
Furthermore, the Single Judge acknowledged that the Respondent confirmed the
payment of USD 1,000,000 as loan transfer compensation to Club Z.
7.
In continuation, the Single Judge took note that, on the one hand, the player and
Club Z signed an employment contract valid as from 1 January 2017 until 30 June
2021, which stipulated the right of the player to terminate his employment
contract against the payment of USD 6,500,000.
8.
The Single Judge equally observed that it had been established that on
11 June 2017, the player informed Club Z of his intention to unilaterally terminate
the employment contract. Furthermore, the Single Judge took note of the fact that
on 21 June 2017, the player and Club Z signed a document titled “Termination
Agreement”, by means of which it is declared that the employment contract is
unilaterally terminated by the player in accordance with art. 9.2 of the contract
and the amount of USD 5,500,000 shall be transferred from the account of the
player, or “who represents him” and it shall be deposited in the account of Club Z.
9.
Thus, in view of the above, the Single Judge concluded that it had been established
and was not contested by the parties that the employment contract between the
player and Club Z had terminated on 21 June 2017, as a result of the payment of
the sum of USD 5,500,000 to Club Z.
10.
The Single Judge further noted that the parties did not dispute that, on
23 June 2017, the player in question subsequently signed an employment contract
with the Respondent, valid as from 2 July 2017 until 20 June 2021.
11.
Furthermore, the Single Judge took note of the argument of the Claimant that the
move of the player from Club Z to the Respondent should be considered as a
transfer, taking into account that, by inserting the aforementioned buyout clause,
Club Z gave its consent to transfer the player against the payment of USD 6,500,000
in advance, as an anticipated offer to a future move of the player. Moreover, the
Claimant stressed that the player could have not afforded to pay the amount of
the buyout clause, unless a third party club would pay the amount instead of the
player.
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
6/11
12.
Subsequently, the Single Judge continued by taking note of the arguments of the
Respondent and, in particular, of the fact that when the latter entered into the
permanent contract with the player, it did not pay Club Z any compensation except
the loan fee.
13.
Therefore, the Single Judge concluded that the underlying issue in the present
matter was to establish wheather the ultimate payment of the amount indicated
in the buyout clause, provided in art. 9.2 of the employment contract between
Club Z and the player, constitited a transfer for the purposes of the solidarity
mechanism system.
14.
That said, the Single Judge was of the opinion that the substance of the transaction
underneath the execution of buyout clauses and the purpose that such clauses
serve must be always kept in mind. In this respect, the Single Judge wished to
emphasise that the reality and the substance of the transactions should prevail on
discussions about forms or schemes of transfers, even more so in cases – like the
one at stake – where the ‘selling club’ freely decided to insert a buyout clause in
the employment contract signed with the player.
15.
Moreover, the Single Judge thought important to bear in mind that, although
formally speaking these buyout clauses seem to require that the player pays the
related amount himself, in reality most of the times, if not always, their amount is,
as a matter of fact, not payable by a physical person. As it happens, players do not
trigger buyout clauses by paying the, often enormous, amounts themselves. The
clubs wanting to secure their services do so on their behalf.
16.
In other words, buyout clauses, regardless of how they are drafted, constitute de
facto an anticipated acceptance of a future possible transfer of a player against
the relevant predetermined amount.
17.
In this regard, the Single Judge highlighted that a sum was paid to the player's
former club to enable him to terminate the employment contract before the
contractually stipulated expiry date, with a view to being transferred to a new
club. The Single Judge further stressed that the only difference resided in the fact
that in the present case, the “transfer amount” was set bilaterally and the
Respondent was not consulted at first. The Single Judge thus concluded that the
facts of the present case constitute a transfer agreed to by Club Z in the terms it
had offered at the time of concluding the employment contract with the player.
18.
Futhermore, the Single Judge recalled that the “Termination Agreement”,
which ended the contractual relationship between the player and Club Z,
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
7/11
expressly stated that the amount of “USD 5,500,000” would be transferred
from the account of the player, or “who represents him”, and it would be
deposited in the account of Club Z.
19.
Consequently, and in view of the above paragraphs, and bearing in mind the
established jurisprudence of the DRC in this regard, the Single Judge decided that
the execution of the buyout clause has to be considered a transfer in the sense of
the Regulations and in particular with regard to art. 21 and art. 1 of Annexe 5 of
the Regulations which clearly stipulates that 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. This is also in line with the spirit and the ratio of the
Regulations, which basically provide that training clubs are entitled to a share of
the solidarity contribution for any compensation paid by the new club to the
former club. Therefore, the Single Judge concluded that the Respondent has to
pay solidarity contribution to the Claimant, basing the compensation amount on
the loan transfer fee, i.e. USD 1,000,000, as well as on the effective payment of
USD 5,500,000.
20.
In this regard, having confirmed the above-mentioned obligation incumbent on
the Respondent, the Single Judge went on to establish the proper calculation of
the relevant proportion of solidarity contribution due to the Claimant.
21.
To that end, 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 the player was effectively trained by a specific club
and taking into consideration the age of the player at the time he was being
training and educated by the club(s) concerned.
22.
In this respect, the Single Judge recalled that the Football Association of country
A had confirmed that the player, born on 15 January 1994, was registered with the
Claimant as from 1 September 2004 until 14 October 2014.
23.
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 1 September 2004 until
14 October 2014, i.e. during 12 months of the seasons of the player’s 12th to
20th birthdays. In terms of the percentage of the 5% solidarity contribution, the
Single Judge calculated, that, on a pro rata basis, this corresponds to the 70% of
the 5% of the total transfer compensation, as opposed to the 100% of the 5% of
the total transfer compensation claimed by the Claimant.
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
8/11
24.
In view of all of the above, taking into account that the transfer fee ultimately
amounts to USD 6,500,000, the Single Judge decided that the Respondent has to
pay the Claimant the amount of USD 227,500 as solidarity contribution in relation
to the transfer of the player from Club Z to the Respondent.
25.
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 USD 35,000 as from 24 February 2017;
b. on the amount of USD 192,500 as from 22 July 2017.
26.
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 227,500, plus 5% interest p.a. as of the
abovementioned due dates, as solidarity contribution for the player, Player X.
27.
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 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.
28.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is USD 365,000, related to the claim of
the Claimant. Consequently, the Single Judge concluded that the maximum
amount of costs of the proceedings corresponds to CHF 25,000 (cf. table in Annexe
A of the Procedural Rules).
29.
As a result, considering the outcome of the claim, the Single Judge determined the
final costs of the current proceedings to the amount of CHF 15,000, which shall be
paid by both of the parties as follows: the amount of CHF 5,000 by the Claimant
and the amount of CHF 10,000 by the Respondent to FIFA. Lastly, the Single Judge
recalled that the Claimant has already paid the amount of CHF 5,000 as advance
of costs at the start of the present proceedings and is therefore exempted from
paying the aforementioned amount as costs of the proceedings.
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
9/11
30.
The Single Judge concluded its deliberations in the present matter by establishing
that any further claim lodged by the Claimant is rejected.
III.
Decision of the Dis pute Res olution Cham ber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club B, has to pay to the Claimant, w ithin 30 day s of the date
of notification of this decision, the amount of USD 227,500, plus 5% interest p.a.
until the date of effective payment as follows:
a) 5% p.a. on the amount of USD 35,000 as from 24 February 2017;
b) 5% p.a. on the amount of USD 192,500 as from 22 July 2017.
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.
Any further claim lodged by the Claimant is rejected.
5.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Single
Judge of the sub-committee of the DRC of every payment received.
6.
The final costs of the proceedings in the amount of CHF 15,000 are to be paid by
both parties w ithin 30 day s as from the date of notification of the present
decision as follows:
6.1.
The amount of CHF 5,000 has to be paid by the Claimant directly to FIFA.
Considering that the Claimant has already paid the amount of CHF 5,000
as advance of costs at the start of the present proceedings, the Claimant
is exempted from paying the aforementioned amount as costs of the
proceedings.
6.2.
The amount of CHF 10,000 has to be paid by the Respondent directly to
FIFA to the following bank account with reference to case no. TMS XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
Solidarity Contribution for the player Player X
(Club A, from country A / Club B, from country B)
10/11
*****
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 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 Player X
(Club A, from country A / Club B, from country B)
11/11