Solidarity Contribution
Texto da decisão
TMS 5893
Decision of the Single Judge of the
sub-committee of the
Dispute Resolution Chamber
passed on 17 June 2021,
regarding solidarity contribution for the transfer of the player Emmanuel Okyere
BOATENG from Levante UD (Spain) to Dalian Professional FC (China PR)
BY:
Om ar Ongaro (Italy), Single Judge of the sub-committee of the DRC
CLAIMANT:
CHASTA, Ghana
RESPONDENT:
DALIAN PROFESSIONAL FC, China PR
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TMS 5893
I. FACTS OF THE CASE
Player:
Emmanuel Okyere Boateng
Date of birth:
23 May 1996
Player passport:
issued by the Ghana Football Association (GFA) on 6 September 2017 – relevant
abstract below:
Season
09/10
Registration
01/08/09 – 31/07/10
Birthday Club
14th
CHASTA
10/11
15th
CHASTA
01/08/10 – 31/07/11
11/12
16th
CHASTA
01/08/11 – 31/07/12
12/13
17th
CHASTA
01/08/12 – 31/07/13
13/14
18th
CHASTA
01/08/13 – 31/07/14
Status
Amateur
(permanent)
Amateur
(permanent)
Amateur
(permanent)
Amateur
(permanent)
Professional
(permanent)
Sporting season:
1 August to 31 July (Ghana)
Date of first
transfer:
17 August 2017, from Moreirense UD (Portugal) to Levante UD (Spain)
Conditions:
Fixed transfer compensation of EUR 2,900,000 in instalments, the last being
due on 30 December 2018;
Clause 3 of the transfer agreement: sell on fee representing 15% of any amount
paid above the instalments of the transfer fee already paid by Levante UD
should the player be transferred to a third club during the course of his contract
with Levante UD.
Date of second
transfer:
Conditions:
28 February 2019, from Levante UD (Spain) to Dalian Professional FC (China)
Clause 3 of the transfer agreement: fixed transfer compensation of EUR
5,000,000 payable by 28 February 2019;
Clause 9: sell on fee representing 20% of any amount paid above EUR
11,000,000 should the player be transferred to a third club during the course
of his contract with the Respondent;
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TMS 5893
Clause 5: the fixed transfer compensation does not include solidarity
contribution, which shall be paid on top of said amount by the Respondent to
the player’s training club(s).
Claimant club:
CHASTA (Ghana)
Respondent club:
Dalian Professional FC (China)
Claim and Response:
1.
On 16 April 2020, the Claimant requested the payment of a sum corresponding to “2% of any
compensation paid or payable by the Respondent to [Levante UD] for the transfer of the Player
– in excess of the amount of EUR 99.794,52 already paid by the Respondent to the Claimant –
plus interest of 5% p.a. as of the due dates until the date of effective payment.”
2.
The Claimant later amended its request for relief as follows:
“(a) principal request:
order the Respondent to pay the Claimant the amount of EUR 131.784,43 as outstanding
amount of solidarity contribution, plus interest of 5 % p.a. as of the due dates until the date of
effective payment;
(b) subordinate request:
order the Respondent to pay the Claimant the amount of EUR 5.468,64 as outstanding amount
of solidarity contribution, plus interest of 5 % p.a. as of the due dates until the date of effective
payment.”
3.
First, the Claimant acknowledged receipt of EUR 99,794.52 from the Respondent, an amount
corresponding to the solidarity considered to be due to the Claimant based on a transfer fee of
EUR 5,000,000.
4.
Nevertheless, the Claimant argued that the transfer fee paid by the Respondent amounted to
EUR 11,000,000, and not EUR 5,000,000.
5.
The Claimant based its allegations on the three following elements:
a. It was widely reported in the Spanish press that the Respondent paid EUR 11,000,000
for the transfer of the player (cf. second submission of the Claimant);
b. Levante UD had confirmed in another procedure in front of the DRC to the Claimant’s
legal counsel that the amount the Spanish club paid as sell-on fee to Moreirense UD
amounted to EUR 1,200,000.
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As such, the Claimant stated that if the 15% sell-on fee paid by Levante UD
corresponded to EUR 1,200,000, it could only mean that the transfer fee received by
Levante UD amounted to EUR 11,000,000.
Sell-on fee for 1st transfer: 15% above EUR 2,900,000
15% of (transfer fee of 2nd transfer – EUR 2,900,000) = sell-on fee for 1st transfer
0.15 * (11,000,000 – 2,900,000) = 1,215,000, which approximately corresponds to
the amount received by Moreirense UD
0.15 * (5,000,000 – 2,900,000) = 315,000, which shall have been the amount received
by Moreirense UD if the transfer fee would have been indeed of a value of EUR
5,000,000
c. The wording of clause 9 of the agreement between Levante UD and the Respondent
clearly suggested that the transfer fee was EUR 11,000,000.
In this respect, the Claimant stated that “it is common practice in transfer agreements
for clubs to agree upon variable transfer fees in connection with the subsequent
transfer of a player that shall normally be calculated over the gain eventually realized
by the new club with such subsequent transfer (the so-called “net gain”).”
Since Levante UD’s interest on a future sell of the player by the Respondent
corresponded to 20% of any amount received by the Respondent above EUR
11,000,000, the Claimant concluded that this was a further indication that EUR
11,000,000 corresponded to the original investment made by the Respondent, i.e. the
transfer fee paid by the Respondent to Levante UD.
6.
As such, the Claimant came to the conclusion that since the Respondent paid a net transfer fee
of EUR 11,000,000 to Levante UD, the total amount of solidarity corresponded to EUR
578,947.47 (i.e. EUR 11,000,000 + 5% = EUR 11,578,947.47 X 0.05 = EUR 578,947.47), of
which the Claimant was entitled to 40%, i.e. EUR 231,578.95.
7.
Having deducted the EUR 99,794.52 already received, the Claimant concluded that it was
entitled to EUR 231,578.95 - EUR 99,794.52 = EUR 131,784.43 plus 5% interest as of the due
date.
8.
Alternatively, the Claimant, making reference to clause 5 of the agreement, underlined that the
parties had agreed to a net transfer fee of EUR 5,000,000, thus the amount of solidarity
corresponded to EUR 263,157.89 (i.e. EUR 5,000,000 + 5% = EUR 5,263,157.89 X 0.05 = EUR
263,157.89), of which the Claimant was entitled to 40%, i.e. EUR 105,263.16.
9.
Having deducted the EUR 99,794.52 already received, the Claimant concluded that it was
entitled to EUR 105,263.16 - EUR 99,794.52 = EUR 5,468.64 plus 5% interest as of the due
date.
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10.
On 12 May 2020, the FIFA administration proposed to the parties the amount of EUR 100,000
11.
On 10 June 2020, the Respondent rejected the claim of the Claimant.
12.
The Respondent pointed out that in April 2019, it had agreed with the Claimant to the payment
of EUR 99,794.52 as solidarity contribution generated by the transfer fee of EUR 5,000,000.
13.
However, the Respondent indicated that this agreement was breached by the Claimant lodging
a claim one year later, and thus, under the principle of pacta sunt servanda.
14.
The Respondent provided emails in which the Claimant confirmed receipt of the payment and
thanked the Respondent for the payment on 30 April 2019 by email.
15.
As such, the Respondent considered that it had discharged its obligation to pay solidarity
contribution and that the claim of the Claimant should be rejected.
16.
On 3 March 2021, Levante UD declared to the FIFA administration that it had amended its
agreement with Moreirense UD, but that it had omitted to upload the amendment in TMS.
17.
According to this addendum, the sell-on of 15% originally agreed was replaced by a lump sum
payment of EUR 1,250,000.
II. LEGAL CONSIDERATIONS
Applicable law:
RSTP: June 2018 edition
Procedural Rules: January 2021 edition
Jurisdiction:
yes, uncontested
Admissible:
yes, uncontested
Decision:
1.
The Claimant is alleging that the transfer fee was of a different amount from the one agreed by
Levante UD and the Respondent via the relevant transfer agreement signed by the two clubs of
reference.
2.
The Claimant is basing its allegations on the fact that its legal representative, while acting as the
legal representative of Moreirense UD, received confirmation from Levante UD that the latter
had paid the former amount of EUR 1,200,000 as sell-on fee representing 15% of the transfer
fee paid by the Respondent to Levante UD, which was in contradiction with the amount declared
in the transfer agreement.
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TMS 5893
3.
In this regard, Levante UD confirmed that it had amended its agreement with Moreirense UD,
but that it had omitted to upload the amendment in TMS.
4.
According to this addendum, the sell-on of 15% originally agreed was replaced by a lump sum
payment of EUR 1,250,000.
5.
The payment of EUR 1,250,000 made by Levante UD to Moreirense UD does in principle
correspond indeed to the above lump sum which replaced the sell-on fee previously agreed,
rather than to a payment corresponding to the sell-on fee of 15% on the basis of a transfer fee
of EUR 11,000,000 which was allegedly paid by the Respondent to Levante UD.
6.
What is more, there is no corroborative evidence on file that the Respondent paid a transfer fee
of EUR 11,000,000 to Levante UD.
7.
In view of the above, the argumentation of the Claimant as to the fact that the transfer fee was
of a value of EUR 11,000,000 shall be dismissed.
8.
Therefore, it is determined that the transfer fee paid by the Respondent to Levante UD was of
an amount of EUR 5,000,000, as per the relevant transfer agreement, a fee which did not include
any solidarity contribution potentially owed to training clubs.
9.
It is undisputed that the player was continuously registered with the Claimant as from 1 August
2009 until 31 July 2014, that is to say for:
a.
b.
c.
d.
e.
10.
As such, the Claimant shall be entitled to receive 40% of any solidarity contribution generated
by the transfer of the player as follows:
a.
b.
c.
d.
e.
11.
The entire season of his 14th birthday;
The entire season of his 15th birthday;
The entire season of his 16th birthday;
The entire season of his 17th birthday; and
The entire season of his 18th birthday.
5% for the season of his 14th birthday;
5% for the season of his 15th birthday;
10% for the season of his 16th birthday;
10% for the season of his 17th birthday; and
10% for the season of his 18th birthday.
As per clause 5 of the agreement, the transfer fee of EUR 5,000,000 was to be paid in full and
with no deductions whatsoever to Levante UD. Therefore, solidarity contribution is to be
calculated in addition to the relevant transfer compensation.
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TMS 5893
12.
As a result, 5% is to be added to the total amount of EUR 5,000,000. Consequently, the amount
to be taken into account to calculate the solidarity contribution due to the Claimant is EUR
263,158.90:
(EUR 5,000,000 X 100/95) = EUR 5,263,158.90 and 5% of EUR 5,263,158.90 = EUR 263,158.90
13.
Thus, in principle, the Claimant shall be entitled to receive 40% of EUR 263,158.90, i.e. EUR
105,263.16.
14.
Nevertheless, the Respondent has already paid to the Claimant the amount of EUR 99,794.52.
15.
The Respondent provided emails in which the Claimant confirmed receipt of the payment and
thanked the Respondent for the payment on 30 April 2019 by email.
16.
There is no evidence on file that the Claimant was provided with a copy of the transfer
agreement before initiating the current proceedings in front of FIFA, thus it cannot be established
that the Claimant was aware, when receiving the payment of EUR 99,794.52 from the
Respondent, that solidarity contribution was excluded from the transfer fee and that it shall have
been entitled to receive a higher amount than the one he received at the time. The Claimant
only became aware of such clause upon disclosure of the transfer agreement in the context of
the current proceedings.
17.
In view of all the above, the Claimant is entitled to receive solidarity contribution for the time it
had the player registered as from the start of the season of his 14th birthday until the end of the
season of his 18th birthday, i.e. 40% of any solidarity contribution.
18.
In the case at hand, the amount due to the Claimant amounts to EUR 105,263.16, to which EUR
99,794.52 have already been paid to the Claimant in or around April 2019.
19.
Thus, the Respondent shall pay the amount of EUR 5,468.64 as outstanding solidarity
contribution.
20.
Furthermore, the Claimant requested the award of interest rate of 5% per annum, “as per the
due date”.
21.
In accordance with the well-established jurisprudence of the DRC, interest are applied as from
the first overdue day for the payment of solidarity contribution.
22.
In this respect, the transfer fee of EUR 5,000,000 was due on 28 February 2019. According to
art. 2 par. 1 of Annexe 5 RSTP, the Respondent had 30 days after said date to pay solidarity
contribution to the Claimant, i.e. up until 30 March 2019.
23.
As a result, the Claimant shall receive interest in the rate of 5% per annum as from the date at
which solidarity contribution became overdue to the Claimant, that is to say as from 31 March
2019.
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24.
The interest rate of 5% per annum on EUR 5'468.64 shall apply until the date of effective
payment of the outstanding solidarity contribution and its applicable interest.
25.
In view of all the above, the claim of the Claimant is partially accepted and the Respondent shall
pay solidarity contribution in the amount of EUR 5'468.64 plus 5% interest p.a. as from 31
March 2019 until effective payment.
26.
Any further claim of the Claimant rejected.
27.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
28.
Art. 24bis RSTP is applicable.
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III.
DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE
DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, CHASTA, is partially accepted.
2. The Respondent, Dalian Professional FC, shall pay to the Claimant EUR 5'468.64 as solidarity
contribution, plus 5% interest per annum on that amount as from 31 March 2019, until the date
of effective payment.
3. Any further claim of the Claimant is rejected.
4. The Claimant shall immediately inform the Respondent of the bank account to which the
Respondent must pay the due amount (including all applicable interest).
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. No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
For the Single Judge of the sub-committee of the DRC:
Emilio García Silvero
Chief Legal & Compliance Officer
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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).
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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