Solidarity Contribution
Texto da decisão
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REF TMS 8037
Decision of the
Single Judge of the sub-committee of
the Dispute Resolution Chamber
passed on 23 September 2021
regarding solidarity contribution for the transfer of the player Kevin Andres
Agudelo Ardila
BY:
Roy Vermeer (Netherlands), Single Judge of the sub-committee of the
Dispute Resolution Chamber
CLAIMANT:
ATLETICO HUILA, Colombia
RESPONDENT:
GENOA CFC, Italy
Page 2 of 9
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REF TMS 8037
I. FACTS OF THE CASE
Player:
Kevin Andres Agudelo Ardila
Date of birth:
14 November 1998
Player passport:
2021
issued by the Federacion Colombiana de Futbol (“COLFUTBOL”) on 10 February
Season
Age
Club(s)
Registration dates
2013-2017
2017
2017
15-19
19
19
26 April 2013 – 21 February 2017
2 March 2017 – 3 March 2017
3 March 2017 – 20 June 2017
2017
2018-2019
2019
19
20
21
Jamundi
La Gaitana
Bogota FC
(Div.
Inferiores)
Bogota FC
Huila
Genoa CFC
20 June 2017 – 31 December 2017
1 January 2018 – 6 August 2019
12 August 2019
Sporting season:
1 January to 31 December (Colombia)
Date of transfer:
14.08.2019, Atletico Huila (Colombia) to Genoa CFC (Italy).
Financial conditions: USD 2,700,000 as follows: USD 1,350,000 on 31 October 2019 and USD
1,350,000 on 31 July 2020.
Clause 2.3 of the agreement stated the following: “The permanent Transfer amount is inclusive of any
Training Compensation and Solidarity Contribution that may be due to Atletico Huila from Genoa
Pursuant to the Regulations on the Status and Transfer of Players.”
Claimant club:
Atletico Huila, Colombia
Respondent club:
Genoa CFC, Italy
Claim and Response:
1.
On 16 March 2021, the Claimant lodged a claim for solidarity contribution against the
Respondent and requested the payment of USD 21,600 corresponding to 16% of the solidarity
contribution generated by the transfer compensation paid to the latter for the player for having
trained him between 1 January 2018 and 6 August 2019.
Page 3 of 9
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REF TMS 8037
2.
Additionally, the Claimant requested the payment of unspecified interests on the claimed
amount as of the relevant due date.
3.
The Claimant explained having lodged two claims in front of the Players’ Status Committee of
FIFA against the Respondent requesting the payment of the two installments due as transfer fee
and added that the Respondent was condemned to pay the amount in question without 5%
solidarity contribution.
4.
As a result, the Claimant deemed being entitled to claim the solidarity contribution from the
Respondent due despite the content of clause 2.3. of the agreement.
5.
The Claimant provided the following decisions as evidence:
-
-
Decision of 16 June 2020 (hereinafter: the first decision) by means of which the Respondent
was condemned to pay the amount of USD 1,292,279.75 to the Claimant plus 5% interests
p.a. as from 16 December 2019 until the date of effective payment;
Decision of 8 December 2020 (hereinafter: the second decision) by means of which the
Respondent was condemned to pay to the Claimant the sum of USD 1,282,500 plus 5%
interests p.a. as from 1 August 2020 until the date of effective payment. It is specified in the
motivated decision that 5% solidarity contribution, i.e. the sum of USD 67,500, was deduced
from the amount due as transfer compensation to the Claimant.
6.
The Respondent alleged the inadmissibility of the Claimant’s claim on the basis of the legal
principle of res iudicata arguing that “the issue of the solidarity contribution (..) was considered
and addressed by the Single Judge in the Second FIFA Decision.”
7.
According to the Respondent “the claim of Huila in respect of solidarity contribution has been
considered, in line with the Transfer Agreement, and ultimately decided upon by FIFA.”
8.
Additionally, the Respondent accused the Claimant of having acted in bad faith by lodging the
present claim as the second decision had been appealed at CAS and the appeal proceedings was
still pending.
9.
The Respondent further accused the Claimant of seeking to “surreptitiously circumvent the
established appeal procedure” by lodging a claim for solidarity contribution instead of appealing
the decision passed by the Single Judge of the Players’ Status Committee.
10.
Finally, the Respondent pointed out that the “ongoing CAS proceedings resulting from the
Second FIFA Decision preclude FIFA from adjudicating on the Claim.”
11.
On 8 September 2021, the Claimant informed FIFA that the appeal at CAS had been withdrawn
by the Respondent.
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REF TMS 8037
II. LEGAL CONSIDERATIONS
Applicable law:
RSTP: 2019 edition.
Procedural Rules: 2021 edition.
Jurisdiction:
yes, uncontested.
Admissible:
yes, contested.
Decision:
12.
The Claimant requested the payment of its portion of the solidarity contribution resulting from
the transfer of the player to the Respondent.
13.
The Respondent alleged the inadmissibility of the claim on the basis of the legal principle of res
iudicata arguing that the Single Judge of the Players’ Status Committee had already decided on
the “issue of solidarity contribution.”
14.
Considering that the appeal at CAS related to the second decision was withdrawn by the
Respondent, both decision passed by the Single Judge of the Players’ Status Committee are final
and binding.
15.
In accordance with the legal principle of res iudicata, a decision making body is not in the
position to deal with the substance of a claim if another (or the same) deciding body has already
dealt with the same matter and passed a final and binding decision on it. The principle of res
iudicata is applicable if, cumulatively and necessarily, the parties to the dispute as well as the
object and the cause of the matter in dispute are identical.
16.
In casu, the parties to the present dispute and the ones involved in the two proceedings
ultimately resolved by the Single Judge of the Players’ Status Committee are identical.
17.
The claim lodged by the Claimant in front of the Players’ Status Committee concerned the
contractual relationship between the parties of the reference while the matter at hand revolves
around the entitlement of the Claimant to receive its portion of solidarity contribution from the
Respondent.
18.
In the second decision, the Single Judge of the Players’ Status Committee deducted the sum of
USD 67,500, corresponding to 5% of the solidarity contribution on the second instalment, from
the amount payable by the Respondent to the Claimant without entering into the question of
whether the latter was entitled to receive solidarity contribution from the Respondent or not.
19.
Because the object of the present dispute differentiates from the ones in the claim dealt with by
the Single Judge of the Players’ Status Committee in the second decision, the principle of res
iudicata is not applicable to the matter at hand as to the request of the Claimant related to the
payment of solidarity contribution on the second installment.
Page 5 of 9
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REF TMS 8037
20.
The grounds of the first decision were not requested by the parties. In accordance with the
findings of such decision the Claimant was granted USD 56,720.25 less than the amount due
as first instalment (USD 1,350,000). Considering that 5% of USD 1,350,000 corresponds to USD
67,500, it appears that in this first decision the Single Judge deducted less than the solidarity
contribution payable to all training clubs in accordance with the Annexe 5 of the RSTP. The
Single Judge deducted USD 10,779.75 from the total amount payable as solidarity. This amount
could correspond to the portion of solidarity due to the Claimant. In order to determine whether
or not the solidarity contribution due to the Claimant in connection with the first installment
was already established in the first decision the amount in question has to be calculated first.
21.
In this respect, it is undisputed that the player was registered with the Claimant as indicated in
the player passport issued by the COLFUTBOL 10 February 2021, i.e. during the entire season of
his 20th, birthday and 218 days of his 21st birthday.
22.
It is also undisputed that the player was transferred to the Respondent for the total amount of
USD 2,700,000 payable in two instalments of USD 1,350,000 each on 31 October 2019 and 31
July 2020 respectively.
23.
According to art. 21 and art. 1 par. 1 of Annexe 5 RSTP, 5% of USD 2,700,000 shall be deducted
as solidarity contribution, that is to say USD 135,000.
24.
The Claimant is entitled to receive its portion of the due solidarity contribution for the training
and education provided to the player during the course of the year of the player’s 20th and 21st
birthday.
25.
As per art. 1 par. 1 of Annexe 5 RSTP, solidarity contribution for the year of a player’s 20th and
21st birthday shall amount to 10% of the total solidarity contribution for each year.
26.
If a player is registered for less than a year this amount shall be calculated pro rata (cf. art. 1 par.
1 of Annexe 5 RSTP).
27.
Since the player was registered with the Claimant during the entire season of his 20th birthday
as well as for 218 days of his 21st birthday , the latter is entitled to receive 15.97% of the due
solidarity contribution, i.e. the amount of USD 21,559.5.
28.
In accordance with art 2. Par. 2 of Annexe 5 to the RSTP, the new club shall pay the solidarity
contribution to the training club(s) no later than 30 days after the player’s registration or, in case
of contingent payments, 30 days after the date of such payments.
29.
In casu, considering that the transfer fee was to be paid in two equal instalments, the Claimant
is entitled to receive the sum of USD 10,779.75 in relation to the first instalment and USD
10,779.75 in relation to the second instalment.
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REF TMS 8037
30.
USD 10,779.75 is the amount that the Single Judge deducted in the first decision from the 5%
solidarity contribution payable to the training club(s). Hence, it can only to be assumed that the
Single Judge already decided on the entitlement of the Claimant to receive its proportion of
solidarity contribution on the first instalment and that he already granted such amount to the
latter.
31.
As a result, the legal principle of res iudicata applies to the request of the Claimant related to
the payment of solidarity contribution on the first installment as it has already been the object
of the decision of another decision making body.
32.
In continuation and considering that in line with the second decision the Claimant did not receive
any amount as solidarity contribution resulting from the second instalment, the latter is entitled
to receive its portion of such amount despite the content of clause 2.3. of the agreement. Any
other outcome would be unfair on the Claimant who agreed on not receiving an additional
amount as solidarity contribution in exchange for receiving the sum of USD 1,350,000 as second
instalment and was then only granted the sum of USD 1,282,000.
33.
In view of all of the aforementioned the Claimant is entitled to receive the sum of USD 10,779.75
as solidarity contribution resulting from the second instalment.
34.
In continuation and taking into account the specific request of the Claimant as well as the
established jurisprudence of the DRC the latter is entitled to receive 5% interests p.a. on the
amount of USD 10,779.75 as from 31 August 2020 until the date of effective payment.
35.
In conclusion, the Claim of the Claimant is partially accepted insofar as it is admissible.
36.
Procedural costs in the maximum amount of CHF 25,000 may be levied for decisions passed by
the subcommittee of the DRC in disputes related to solidarity contribution (cf. art. 18 par. 1 of
the Procedural Rules).
37.
The amount claimed by the Claimant is below CHF 50,000.
38.
Therefore, procedural costs levied in this respect shall not exceed the sum of CHF 5,000 (art. 1
of Annexe A of the Procedural Rules).
39.
In consideration of the amount claimed, the costs of the proceedings are set at CHF 1,000.
40.
Taking into account that the claim of the Claimant is only partially accepted the Claimant shall
pay the amount of CHF 300 and the Respondent the amount of CHF 700 as procedural costs.
41.
Art. 24bis applies.
Page 7 of 9
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REF TMS 8037
DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE
DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Atletico Huila, is partially accepted insofar it is admissible.
2.
The Respondent, Genoa CFC, shall pay to the Claimant USD 10,779.75 as solidarity contribution,
plus 5% interest per annum on that amount as of 31 August 2020 until the date of effective
payment.
3.
Any further claims lodged by the Claimant are rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
The Respondent shall provide evidence of full payment to [email protected]. If applicable, the
evidence shall be translated into an official FIFA language (English, French, German, Spanish).
6.
If the due amount (including all applicable interest) is not paid by the Respondent within 45 days
as from notification of the bank account details, the following consequences shall apply:
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.
2. The ban will be lifted immediately, and prior to its complete serving, following confirmation
that the due amount (including all applicable interest) has been received by the Claimant.
3. 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.
7.
The final costs of the proceedings in the amount of CHF 1,000 are to be paid are to be paid as
follows:
a. The amount of CHF 300 shall be paid by the Claimant;
b. The amount of CHF 700shall be paid by the Respondent;
c. The above costs shall be paid to FIFA with reference to case no. TMS 8037 (cf.note
relating to the payment of the procedural costs below)
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 8 of 9
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REF TMS 8037
NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 58 paragraph 1 of the FIFA Statutes, this decision may be appealed before the
Court of Arbitration for Sport within 21 days of notification.
NOTE RELATED TO 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).
NOTE RELATING TO THE PAYMENT OF THE PROCEDURAL COSTS:
If applicable, payments to FIFA should be made by wire transfer in Swiss francs (CHF) to the following
bank account:
366.677.01U (FIFA Players’ Status) UBS Zurich,
SWIFT: UBSWCHZH80A, Clearing number 230, IBAN: CH 27 0023 0230 3666 7701U
Please mention the applicable reference number
CONTACT INFORMATION:
Fédération Internationale de Football Association
FIFA-Strasse 20 P.O. Box 8044 Zurich Switzerland
www.fifa.com | legal.fifa.com | [email protected] | T: +41 (0)43 222 7777
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