Solidarity Contribution
Texto da decisão
REF TMS 9507
Decision of the
Dispute Resolution Chamber
passed on 21 January 2022
regarding solidarity contribution for the transfer of the player Philipe Sampaio
Azevedo
BY:
Frans DE WEGER (the Netherlands )
CLAIMANT:
Santos - SP, Brazil
RESPONDENT:
EA Guingamp, France
INTERVENING PARTY
GD Santa Cruz Alvarenga, Portugal
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REF TMS 9507
I. FACTS OF THE CASE
Player:
Philipe SAMPAIO AZEVEDO
Date of birth:
11 November 1994
Player passport:
issued by the Confederação Brasileira de Futebol (CBF) on 22 February 2018 –
relevant abstract below
Season
2011
2012
2013
2014
2014
Birthday
17th
18th
19th
20th
20th
2014
20th
Club(s)
Santos / SP
Santos / SP
Santos / SP
Santos / SP
Paulista
Futebol
Clube / SP
Santos / SP
Registration dates
01/12/11 – 31/12/11
01/01/12 – 31/12/12
01/01/13 – 31/12/13
01/01/14 – 16/02/14
17/02/14 – 17/04/14
Status
Professional (permanent)
Professional (permanent)
Professional (permanent)
Professional (permanent)
Professional (loan)
18/04/14 – 31/07/14
Professional (permanent)
Sporting season:
1 January to 31 December (Brazil)
Date of transfer:
18 August 2020, from GD Santa Cruz Alvarenga (Portugal) to EA Guingamp
(France) as professional
Conditions:
Clause 3.1 of the transfer agreement: fixed transfer fee of EUR 700,000 “net”
by 4 August 2020.
Clause 3.2. of the transfer agreement: “The parties agree and acknowledge
that the transfer fees includes any sums of Solidarity Contribution and Training
Compensation due to any third clubs under art. 20,21 Annexe 4 and Annexe 5
of the FIFA Regulations on the Status and Transfer of Players (…) in connection
with the transfer of the player.
Considering the terms of this clause, EA GUINGAMP undertakes to inform GD
SANTA CRUZ ALVARENGA with 48 hours if any claims are presented by third
clubs charging EA GUINGAMP for Solidarity Contribution or Training
Compensation in connection with the present transfer of the player. Also, EA
GUINGAMP consents that, in such case GD SANTA CRUZ ALVARENGA might
be, if applicable, a party of those claims and that EA GUINGAMP will insert on
the FIFA TMS platform, if applicable, any response eventually provided by GD
SANTA CRUZ ALVARENGA for those claims. (…)
GD SANTA CRUZ ALVARENGA agrees that the solidarity mechanism due to
third cubs shall be paid directly by GD SANTA CRUZ ALVARENGA, to any third
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REF TMS 9507
club. GD SANTA CRUZ ALVARENGA discharges EA GUINGAMP from any claims
of third clubs in case this warranty should turn out to be incorrect.”
Claimant club:
Santos - SP (Brazil)
Respondent club:
EA Guingamp (France)
Intervening party:
GD Santa Cruz Alvarenga (Portugal)
Claim and Response:
1.
On 29 November 2021, the Claimant requested a sum corresponding to 25.013% of the
solidarity contribution generated by the transfer of the player from the Intervening party to the
Respondent “increased by interest rates of 5% (…) per year counted from the date in which the
solidarity contribution should have been spontaneously paid by [the Respondent].”
2.
On 6 December 2021, after having been informed by the FIFA administration of the
aforementioned financial conditions of the transfer, the Claimant amended its initial claim and
requested the amount of EUR 9,192.28, plus “5% per year, pro rata die, counted as from its
respective due date (04 September 2020, i.e. 30 days after the payment of the transfer fee).“
3.
In particular, the Claimant held that “Considering the NET transfer fee incurred by Guingamp,
the amount of EUR 36.750,00 (…) should be apportioned for distribution as solidarity
mechanism.”
4.
Bearing all the above in mind, the Claimant held that the Intervening party or the Respondent
were both liable to pay it “EUR 9.769,00 (…), considering the date of today (06 December 2021)
to account the interest.”
5.
On 8 December 2021, the FIFA administration notified the Claimant’s claim to the Respondent
and the Intervening party.
6.
On 4 January 2022, the Respondent rejected the claim of the Claimant.
7.
The Respondent, referring to clause 3.2. of the transfer agreement, argued that it was the
responsibility of the player’s former club, i.e. the Intervening party, to pay any solidarity
contribution generated by the transfer fee to the Claimant instead of it.
8.
The Intervening party did not provide its comments to the claim despite having been invited to
do so.
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REF TMS 9507
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): June 2020 edition
Procedural Rules Governing the Football Tribunal (Procedural Rules): October
2021 edition
Jurisdiction:
yes, uncontested.
Admissible:
yes, uncontested.
Decision:
1.
The Claimant requested the payment of solidarity contribution resulting from the transfer of the
player from the Intervening party to the Respondent.
2.
The Respondent, although not contesting the entitlement of the Claimant to receive solidarity
contribution, rejected the claim of the latter arguing that the former club, i.e. the Intervening
party, had undertaken to proceed with such payment.
3.
The Intervening party did not provide its comments to the claim.
4.
Art. 1 par. 1 of Annexe 5 of the RSTP 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 and distributed by the new
club as a solidarity contribution to the club(s) involved in his training and education over the
years. This solidarity contribution reflects the number of years (calculated pro rata if less than
one year) he was registered with the relevant club(s) between the seasons of his 12th and 23rd
birthdays
5.
As indicated in the CBF player passport of 22 February 2018, the player was registered with the
Claimant as from 1 December 2011 until 16 February 2014 and as from 18 April until 31 July
2014, i.e.:
a.
b.
c.
d.
6.
31 days of the season of the player’s 17th birthday;
The entire season of the player’s 18th birthday;
The entire season of the player’s 19th birthday; and
105 days of the season of the player’s 20th birthday.
Based on the above, the Claimant shall be entitled to receive 25.01% of any solidarity
contribution generated by the transfer of the player, corresponding to:
a. 0.85% of any due solidarity contribution for the training education provided to the player
during the 31 days of the season of his 17th birthday;
b. 10% of any due solidarity contribution for the training education provided to the player
during the entire season of the player’s 18th birthday;
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REF TMS 9507
c. 10% of any due solidarity contribution for the training education provided to the player
during the entire season of the player’s 19th birthday; and
d. 4.16% of any due solidarity contribution for the training education provided to the player
during the 105 days of the season of his 20th birthday.
7.
Art. 1 par. 1 of Annexe 5 of the RSTP foresees that 5% of any compensation paid by the new
club to the former club shall be deducted and distributed by the new club as solidarity
contribution.
8.
It is uncontested that the new club, i.e. the Respondent, paid to the former club, i.e. the
Intervening party, a transfer fee of EUR 700,000.
9.
The Claimant held that because clause 3.1 of the transfer agreement stipulated that the fixed
transfer fee of EUR 700,000 was a “net” amount, the solidarity contribution was excluded from
the said amount and should therefore be added on top for the purposes of its calculations.
10.
According to the well-established jurisprudence of the DRC, in order to consider that the transfer
fee is net of solidarity contribution (100+5), the Chamber is of the opinion that the stipulations
of the transfer agreement between the former club and the player’s new club have to make
clear reference to a net amount (i.e. the transfer fee exclusive of solidarity payments) as well as
the explicit reference to the solidarity contribution which may not be deducted from the transfer
compensation stipulated in the transfer agreement.
11.
In other words, the DRC is of the opinion that the term “net” in itself is not sufficient to conclude
that the 5% of the solidarity contribution should not be deducted from the transfer
compensation.
12.
What is more, clause 3.2. of the transfer agreement provided inter alia that “(…) the transfer
fees includes any sums of Solidarity Contribution (…)”
13.
Consequently, the amount to be taken into account is EUR 700,000, and the Claimant’s request
to add the 5% solidarity contribution on top of the transfer fee shall be dismissed.
14.
Therefore, the total solidarity contribution generated by the transfer of the player from the
Intervening party to the Respondent corresponds to 5% of EUR 700,000, i.e. EUR 35,000.
15.
The Claimant is entitled to receive 25.01% of the solidarity contribution.
16.
Therefore, the Claimant is entitled to EUR 8,753.50.
17.
In accordance with art. 2 par. 1 of Annexe 5 RSTP, the new club of a player 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.
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REF TMS 9507
18.
It is uncontested that the Respondent did not pay any of the due solidarity contribution to the
Claimant.
19.
Based on the above, the Respondent shall pay the Claimant solidarity contribution of EUR
8,753.50.
20.
In addition, taking into account the specific request of the Claimant, the Claimant is entitled to
receive interest at the rate of 5% p.a. on the due amount as of the 31st day after the player’s
registration with the Respondent, i.e. 18 September 2020.
21.
The Respondent contested being the party liable to pay solidarity contribution to the Claimant
in view of the content of the agreement. The Intervening party failed to provide its comments
to the claim.
22.
In accordance with the jurisprudence of the DRC, in strict application of the provisions set forth
in the RSTP, the player’s new club is ordered to remit the relevant proportion(s) of the 5%
solidarity contribution to the club(s) involved in the player’s training in strict application of art. 1
and 2 of Annexe 5 of the RSTP even if the new club and the former club agreed otherwise in
the relevant transfer or loan agreement.
23.
As per the same jurisprudence and in line with the principle of procedural economy, the DRC
has rendered decisions in the past in which it would at the same time order the former club, i.e.
the Intervening party, to reimburse the same proportion(s) of the 5% of the solidarity
compensation that it had received from the player’s new club as transfer or loan fee.
24.
However, in the present matter, the Respondent did not request the reimbursement from the
former club, i.e. the Intervening party, of the solidarity contribution payable to the Claimant on
the transfer fee and the Intervening party did not provide its comments to the claim.
25.
Hence, in casu, a potential reimbursement by the former club, i.e. the Intervening party, cannot
be discussed. The Respondent can however lodge a claim with the Players’ Status Department
of FIFA should it wish to do so.
26.
Bearing all the above in mind, it is established that the Respondent, i.e. the new club, shall pay
the Claimant solidarity contribution of EUR 8,753.50, plus 5% interest p.a. as from 18
September 2020.
27.
Consequently, the claim of the Claimant is partially accepted.
28.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for disputes
between clubs regarding the payment of training rewards.
29.
The Claimant claimed the amount of EUR 9,769.
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REF TMS 9507
30.
Thus, the amount claimed by the Claimant corresponds to an amount lower than USD 49,999.
Therefore, procedural costs levied in this respect are fixed at a maximum of USD 5,000 (cf. art.
2 of Annexe 1 to the Procedural Rules).
31.
According to art. 25 par. 5 of the Procedural Rules, the chamber will decide the amount that
each party is due to pay, in consideration of the parties’ degree of success and their conduct
during the procedure, as well as any advance of costs paid. In exceptional circumstances, the
chamber may order that FIFA assumes all procedural costs.
32.
In view the specific circumstances of the case, procedural costs shall be set at USD 1,000.
33.
In view of the outcome of the claim and the conduct of the parties, said costs shall be borne by
the parties in view of the outcome of the case, as follows:
a. The amount of USD 200 shall be paid by the Claimant;
b. The amount of USD 800 shall be paid by the Respondent.
34.
Art. 24bis of the RSTP is applicable to the matter at hand.
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REF TMS 9507
III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Santos - SP, is partially accepted.
2.
The Respondent, EA Guingamp, shall pay to the Claimant EUR 8,753.50 as solidarity contribution,
plus 5% interest per annum as of 18 September 2020 until the date of effective payment.
3.
Any further claim of the Claimant is 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 USD 1,000 are to be paid as follows:
a. The amount of USD 200 shall be paid by the Claimant;
b. The amount of USD 800 shall be paid by the Respondent;
c. The above costs shall be paid to FIFA with reference to case no. TMS 9507 (cf. note relating to
the payment of the procedural costs below)
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 9507
NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 57 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 17 of the Procedural Rules).
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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