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 26 August 2019,
by Alex andra Góm ez Bruinew oud (Uruguay),
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 2 April 1991, was
registered with its affiliated club, Club A (hereinafter: the Claimant) as from 1
January 2005 until 8 January 2009.
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 9 June 2018 the Club of Country B, Club F (hereinafter: Club F), concluded a
transfer agreement with the Club of Country D, Club C (hereinafter: the
Respondent), for the permanent transfer of the player to the Respondent for a
transfer fee in the amount of USD 6,000,000, payable as follows:
a.
b.
c.
d.
e.
USD 2,000,000 by no later than 15 June 2018;
USD 1,000,000 by no later than 10 July 2018;
USD 1,000,000 by no later than 30 October 2018;
USD 1,000,000 by no later than 30 January 2019;
USD 1,000,000 by no later than 30 April 2019.
4.
Furthermore, the transfer agreement stipulated that the agreed amount is a
sum of money that the Respondent will pay to Club F “libres de cualesquiera
deducciones” [free translation: “free of any deductions”], and that the
Respondent “acepta asumir y pagar exclusivamente cualquier pago proveniente
o derivado de contribución y/o mecanismo de solidaridad y/o derechos de
formación de acuerdo con el Reglamento sobre el Estatuto y Transferencia de
Jugadores de la FIFA” [free translation: “the Respondent is responsible for any
obligation arising from or derived from solidarity mechanism and/or training
compensation in accordance with the FIFA Regulations on the Status and
Transfer of Players”].
5.
According to the information available in the TMS, the player was registered
with the Respondent on 16 July 2018.
6.
On 27 September 2018, the Claimant contacted FIFA claiming its proportion of
the solidarity contribution in connection with the aforementioned transfer. In
particular, the Claimant requested 30% of the 5% of the total transfer fee.
Solidarity contribution for the player, Player E
(Club A, Country B/ Club C, Country D)
2
7.
In its reply, the Respondent requested to reject the claim. In particular, it
explained that, at the time of the notification of the claim, the last two
instalments of the transfer fee were not due. Furthermore, the Respondent
argued that it had not deducted the corresponding percentage of solidarity
mechanism from the total amount of the transfer and consequently, the
Respondent requested reimbursement of USD 90,000 by the former club of the
player, i.e. Club F.
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 27 September 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 June 2019) and considering
that the player was registered with the Respondent on 16 July 2018, the June
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
Solidarity contribution for the player, Player E
(Club A, Country B/ Club C, Country D)
3
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 30% of the 5% of the total transfer fee, from the Respondent as
solidarity contribution in connection with the international transfer of the
professional player, Player E, from Club F to the Respondent.
6.
In this regard, the Single Judge duly noted that, according to the relevant
transfer agreement dated 9 June 2018, the player was transferred from Club F
to the Respondent for transfer fee in the amount of USD 6,000,000, payable as
follows: the amount of USD 2,000,000 by no later than 15 June 2018, the
amount of USD 1,000,000 by no later than 10 July 2018, the amount of
USD 1,000,000 no later than 30 October 2018, the amount of USD 1,000,000 by
no later than 30 January 2019 and the amount of USD 1,000,000 by no later
than 30 April 2019.
7.
In continuation, the Single Judge took note that the Respondent, for its part,
requested to reject the claim, considering that the payments of the last two
instalments of the transfer fee were still not due. Furthermore, the Single Judge
took note of the Respondent’s argument that it had not deducted the
corresponding percentage of solidarity mechanism from the total amount of the
transfer and consequently that the former club of the player, i.e. Club F, shall be
liable for the payment of USD 90,000.
8.
In this respect, the Single Judge observed that the transfer agreement clearly
established that the agreed amount is a sum of money that the Respondent will
pay to Club F free of any deductions and that the Respondent is responsible for
any obligation arising from or derived from solidarity mechanism in accordance
with the Regulations. Furthermore, the Single Judge took note that at the time
of his decision, all instalments of the transfer agreement were already due.
9.
Having established the above, 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
Solidarity contribution for the player, Player E
(Club A, Country B/ Club C, Country D)
4
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.
Moreover, 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.
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.
This being established, 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 of Country B, the player, born on 2 April 1991,
was registered with the Claimant from 1 January 2005 until 8 January 2009.
14.
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 January 2005 until
8 January 2009, i.e. during the entire seasons of the player’s 14th, 15th, 16th and
17th birthday. In terms of the percentage of the 5% solidarity contribution, the
Single Judge calculated that, on a pro rata basis, this corresponds to 30% of the
5% of the total transfer compensation, as claimed by the Claimant.
15.
In view of all the above and in accordance with art. 21 in combination with
Annexe 5 of the Regulations, the Single Judge decided to accept the claim of
the Claimant and concluded that the Respondent is liable to pay to the Claimant
the amount of USD 90,000, as solidarity contribution in relation to the transfer
of the player from Club F to the Respondent.
16.
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.
Solidarity contribution for the player, Player E
(Club A, Country B/ Club C, Country D)
5
17.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is USD 90,000, related to the claim of
the Claimant. Consequently, the Single Judge concluded that the maximum
amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in
Annexe A of the Procedural Rules).
18.
As a result, considering the degree of success, the Single Judge determined the
final costs of the current proceedings to the amount of CHF 10,000, which shall
be paid by the Respondent as follows: the amount of CHF 2,000 to the Claimant
and the amount of CHF 8,000 to FIFA.
19.
Furthermore, 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.
20.
In this regard, the Single Judge pointed out that, against clubs, the consequence
of the failure to pay the relevant amounts in due time shall consist of a ban
from registering any new players, either nationally or internationally, up until
the due amounts are paid and for the maximum duration of three entire and
consecutive registration periods.
21.
Therefore, bearing in mind the above, the Single Judge decided that, in the
event that the Respondent does not pay the amounts 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 Respondent in accordance
with art. 24bis par. 2 and 4 of the Regulations.
22.
Finally, the Single Judge recalled that the above-mentioned ban will be lifted
immediately and prior to its complete serving upon payment of the due
amounts, in accordance with art. 24bis par. 3 of the Regulations.
III.
Decision of the S ingle Judge of the s ub-com m ittee of the DRC
Solidarity contribution for the player, Player E
(Club A, Country B/ Club C, Country D)
6
1.
The claim of the Claimant, Club A, is accepted.
2.
The Respondent, Club C, has to pay to the Claimant the amount of USD 90,000.
3.
The Claimant is directed to inform the Respondent, immediately and directly, of
the relevant bank account to which the Respondent must pay the amount
mentioned under point 2. above.
4.
The Respondent shall provide evidence of payment of the due amount in
accordance with point 2 above to FIFA to the e-mail address [email protected],
duly translated, if need be, into one of the official FIFA languages (English,
French, German, Spanish).
5.
In the event that the amount due, in accordance with point 2. above, is not paid
by the Respondent w ithin 45 day s as from the notification by the Claimant of
the relevant bank details to the Respondent, 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 (cf. art. 24bis of the Regulations on the Status
and Transfer of Players).
6.
The ban mentioned in point 5. above will be lifted immediately and prior to its
complete serving, once the due amount is paid.
7.
In the event that the aforementioned sum 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 FIFA’s Disciplinary Committee for consideration and
a formal decision.
8.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid by
the Respondent, w ithin 45 day s as from the date of notification of the present
decision as follows:
a.
The amount of CHF 8,000 has to be paid to FIFA to the following bank
account with reference to case no. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
Solidarity contribution for the player, Player E
(Club A, Country B/ Club C, Country D)
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IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
b. The amount of CHF 2,000 has to be paid to the Claimant.
9.
In the event that the aforementioned amount of costs is not paid within the
stated time limit, the present matter shall be submitted to FIFA’s Disciplinary
Committee for consideration and a formal decision.
*****
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 E
(Club A, Country B/ Club C, Country D)
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