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 F (hereinafter: the Claimant) as
from 1 January 2003 until 31 December 2004.
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 G (hereinafter: Club G),
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 G “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 13 September 2018, the Claimant contacted FIFA claiming its proportion
of the solidarity contribution in connection with the aforementioned
Solidarity contribution for the player, Player E
(Club A, Country B / Club C, Country D)
2
transfer. In particular, the Claimant requested 10% of the 5% of the total
transfer fee, plus 5% interest p.a. as from the due dates until the date of
effective payment.
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 30,000 by the former club of
the player, i.e. Club G.
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 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.
Solidarity contribution for the player, 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 10% of the 5% of the total 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.
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
G 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 G,
shall be liable for the payment of USD 30,000.
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 G 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
Solidarity contribution for the player, Player E
(Club A, Country B / Club C, Country D)
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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 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 2003 until
31 December 2004.
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 2003 until
31 December 2004, i.e. during the entire seasons of the player’s 12th and 13th,
birthday. In terms of the percentage of the 5% solidarity contribution, the
Single Judge calculated that, on a pro rata basis, this corresponds to 10% of
the 5% of the total transfer compensation, as claimed by the Claimant.
Solidarity contribution for the player, Player E
(Club A, Country B / Club C, Country D)
5
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 30,000, 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 DRC judge
decided that the Respondent has to pay, in conformity with the
longstanding practice of the DRC, interest at rate of 5% p.a. as follows:
a.
b.
c.
d.
on the amount of USD 15,000 as from 16 August 2018 until the date
of effective payment;
on the amount of USD 5,000 as from 30 November 2018 until the date
of effective payment;
on the amount of USD 5,000 as from 2 March 2019 until the date of
effective payment;
on the amount of of USD 5,000 as from 31 May 2019 until the date of
effective payment.
17.
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.
18.
In respect of the above, the Single Judge held that the amount to be taken
into consideration in the present proceedings is USD 30,000, 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).
19.
As a result, considering the degree of success, the Single Judge determined
the final costs of the current proceedings to the amount of CHF 5,000, which
shall be paid by the Respondent.
20.
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
Solidarity contribution for the player, Player E
(Club A, Country B / Club C, Country D)
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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.
21.
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.
22.
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.
23.
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
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
30,000 plus interest as follows:
a) 5% p.a. on the amount of USD 15,000 as from 16 August 2018 until the
date of effective payment;
b) 5% p.a. on the amount of USD 5,000 as from 30 November 2018 until the
date of effective payment;
c) 5% p.a. on the amount of USD 5,000 as from 2 March 2019 until the date
of effective payment;
d) 5% p.a. on the amount of USD 5,000 as from 31 May 2019 until the date
of effective payment.
Solidarity contribution for the player, Player E
(Club A, Country B / Club C, Country D)
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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 5,000 are to be paid
by the Respondent w ithin 45 day s as from the date of notification of the
present decision, to FIFA to the following bank account with reference to
case nr. XXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
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.
*****
Solidarity contribution for the player, Player E
(Club A, Country B / Club C, Country D)
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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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