Solidarity Contribution
Texto da decisão
TMS 6324
Decision of the
Dispute Resolution Chamber
passed on 29 April 2021,
regarding solidarity contribution for the transfer of the player Vitor Frezarin BUENO
BY:
Clifford J. Hendel (USA / France), Deputy Chairman
Moham ed Muzamm il (Singapore), member
S téphane Burchkalter (France), member
CLAIMANT:
COMERCIAL FC, Brazil
RESPONDENT:
FC DYNAMO KYIV, Ukraine
Page 2 of 10
TMS 6324
I. FACTS OF THE CASE
Player:
Vitor Frezarin BUENO
Date of birth:
5 September 1994
Player passport:
issued by the Confederação Brasileira de Futebol (CBF) on 27 September 2019
– relevant abstract below
Season
2008
2009
Club(s)
Comercial FC
Comercial FC
Birthday
14th
15th
Registration dates
24/04/2008 – 31/12/2008
07/05/2009 – 17/09/2009
Status
Amateur (Permanent)
Amateur (Permanent)
Date of transfer:
3 August 2018, on loan from Santos FC (Brazil) to FC Dynamo Kyiv (Ukraine)
Conditions:
Art. 1 par. 1 of the loan agreement: the player is to be loaned to FC Dynamo
Kyiv from 1 August 2018 until 30 June 2020.
Art. 3 of the loan agreement: no financial compensation for the temporary
transfer of the player is payable to Santos FC.
Claimant club:
Comercial FC (Brazil)
Respondent club:
FC Dynamo Kyiv (Ukraine)
Claim and Response:
1.
On 3 August 2018, the player was loaned from his parent club, Santos FC (Brazil), to the
Respondent for the period 1 August 2018 to 30 June 2020.
2.
According to art. 3 of the loan agreement, the loan was free of payment.
3.
On 3 August 2018, the Respondent loaned the player Derlis Alberto González Galeano
(Gonzalez) to Santos FC (hereinafter also referred as parent club) free of payment.
4.
On 5 April 2019, the player returned from his loan to the parent club.
5.
In this respect, the parent club and the Respondent signed a loan termination agreement on 3
April 2019.
6.
According to art. 6 of the loan termination agreement, no compensation was payable to any of
the parties in light of the early termination of the loan agreement, and they “mutually waive any
claims or legal actions in future related to [the loan agreement] before Football Federation of
Ukraine, FIFA Dispute Resolution Chamber (…)”.
Page 3 of 10
TMS 6324
7.
On 5 June 2020, the Claimant lodged a first claim against the Respondent in relation to the
payment of solidarity contribution on the basis of the temporary registration of the player from
the parent club to the Respondent (cf. TMS claim ref. 6151).
8.
On 19 June 2020, the FIFA administration closed the aforementioned claim on the assumption
that no transfer compensation had been paid by the Respondent to the parent club, thus no
solidarity contribution was payable to the Claimant.
9.
On 19 June 2020, the Claimant lodged a second claim against the Respondent in relation to the
payment of solidarity contribution on the basis of the temporary registration of the player from
the parent club to the Respondent (cf. TMS claim ref. 6218).
10.
On 3 July 2020, the FIFA administration closed the aforementioned claim on the assumption that
no transfer compensation had been paid by the Respondent to the parent club, thus no solidarity
contribution was payable to the Claimant (cf. enclosure).
11.
On 6 July 2020, the Claimant lodged a third claim (cf. TMS claim ref. 6324). In this respect, the
Claimant requested the payment of “37% (thirty-seven percent) of the percentage laid down for
the season of the 12th birthday of VITOR BUENO in article 1, paragraph 1, of the Annexe 5 of
the FIFA RSTP (i.e., 5% of 5% of the estimated value of this exchange of players), corresponds
to, at least, €9,250.00 (nine thousand, two hundred and fifty euros), plus a 5% (five percent)
yearly interest rate, calculated on a pro rata basis, as of 1st September 2018 until the effective
date of payment.”
12.
The Claimant argued that this case was “related to an exchange of players (loan)”. In particular,
the Claimant maintained that the Respondent’s former player Gonzalez had been exchanged
with the player. In this respect, the Claimant referred to press articles which are reporting that
the player had temporarily signed with the Respondent and that Gonzalez had temporarily
signed with Santos FC.
13.
In fact, the Claimant pointed out that the player was loaned from the parent club to the
Respondent on 3 August 2018, and that on the same day Gonzalez was in return loaned from
the Respondent to the parent club.
14.
In this respect, taking into consideration “the jurisprudence of both FIFA and TAS/CAS”, the
Claimant pointed out that “even though may have not been fixed and/or inserted in FIFA TMS
any numbers as transfer compensation by the clubs (Santos FC and FC Dynamo Kyiv), there is,
for sure, a monetary value involved in it”. Therefore, the Claimant highlighted being
“undoubtedly entitled to an amount as solidarity contribution”.
15.
According to the Claimant, in the event of an exchange of players, “the FIFA and TAS/CAS
jurisprudence establish that the previous transfer fee of the players shall be considered for the
valuation of the current transfer”. In this context, the Claimant pointed out that the Respondent
originally acquired the services of Gonzalez from its previous club FC Basel against the payment
of a transfer fee of EUR 10,000,000.
Page 4 of 10
TMS 6324
16.
As such, the Claimant considered that the market value of Gonzalez amounted to EUR
10,000,000 when he was exchanged by the Respondent to Santos FC against the player, and
that said amount should be considered as the value of the exchange of players at the centre of
the current dispute.
17.
In its reply to the claim, the Respondent rejected the Claimant’s claim and maintained that no
transfer compensation was paid to Santos FC. In support, the Respondent provided a copy of
the loan agreement concluded with Santos FC.
18.
Furthermore, the Respondent wished to emphasize that the “transfer of [the player] to [the
Respondent] on a loan basis was never linked to the contract of the transfer of [Gonzalez] on a
loan basis to [Santos FC] as it stems from the relevant loan contract”. As per the Respondent,
“it was two different independent contracts, and none of them was subject to signing of the
other contract”.
19.
The Respondent underlined that free of charge loans were common practice, and that both
Santos FC and the Respondent were only interested in loaning the player and Gonzalez free of
charge.
20.
Lastly, as regards the amount of solidarity contribution requested by the Claimant, the
Respondent stressed that “the method of calculation of the solidarity contribution, which was
used in such jurisprudence, could not be applicable to the present case because in all CAS cases
there were permanent transfers and it used previous transfer compensation for permanent
transfer as a basis for calculation of the money value of the new permanent transfer, whence in
our case the Claimant wished to use previous permanent transfer compensation as a basis for
calculation of the amount of the loan transfer”.
21.
In view of all the above, the Respondent rejected the Claimant’s arguments and, once again,
held that “the present transfer was executed against no transfer compensation”. Consequently,
it deemed that no obligations to pay solidarity contribution arose.
22.
In its replica, the Claimant reiterated its request for relief.
23.
In its duplica, the Respondent insisted that the transfer of the player and the transfer of Gonzalez
were two distinct transactions. In fact, the Respondent pointed out that loan of the player had
been mutually terminated whilst Gonzalez remained on loan with Santos FC up until 6 February
2020.
24.
Additionally, the Respondent referred to a decision that was passed by the DRC on 27 August
2020 regarding the solidarity contribution claim lodged by another training club of the player
against the Respondent in relation to the same transfer of reference.
25.
In particular, the Respondent pointed out that the claim had been rejected, and requested a
similar outcome for the present matter.
Page 5 of 10
TMS 6324
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): June 2018
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): 2021 edition
Decision:
1.
The Claimant is requesting the payment of its portion of solidarity contribution on the temporary
transfer of the player of reference from Santos FC to the Respondent. In fact, the Claimant is of
the opinion that although said transfer was recorded as a free of payment transaction, it
represented an exchange of players and that as such, and in line with the jurisprudence of the
DRC, the transfer constituted a financial transaction which triggered solidarity. In this respect,
the Claimant estimated that the value of the transfer shall be set at EUR 10,000,000, which
corresponded to the amount paid by the Respondent to acquire the services of Gonzalez.
2.
The Respondent is arguing that the loan of the player was a separate transaction from the loan
of Gonzalez, and that therefore no exchange of players occurred between the Respondent and
Santos FC.
3.
According to the player passport issued by the CBF, the player was registered with the Claimant
as from 24 April 2008 until 31 December 2008 and as from 7 May 2009 until 17 September
2009, corresponding to:
a. 252 days of the year of the player’s 14th birthday; and
b. 134 days of the year of the player’s 15th birthday.
4.
It is uncontested that the Claimant trained the player during the seasons of his 14th and 15th
birthdays, and that as such, it shall be entitled to receive solidarity contribution every time the
player is transferred before the expiry of his contract between two clubs affiliated to a different
association, as per art. 21 and Annexe 5 RSTP.
5.
It is undisputed that on 3 August 2018, the player transferred from Santos FC, a club affiliated
to the CBF, to the Respondent, a club affiliated to the Ukrainian Association of Football (UAF).
6.
According to art. 1 par. 1 of Annexe 5 RSTP, 5% of any compensation paid by the new club to
the former 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.
7.
Art. 2 par. 1 of Annexe 5 RSTP clearly stipulates that the new club shall be responsible to
distribute solidarity contribution to the training club(s).
Page 6 of 10
TMS 6324
8.
In casu, the Respondent shall be responsible to distribute 5% of any compensation paid to
Santos FC for the loan of the player to the player’s training clubs, such as the Claimant.
9.
According to art. 3 of the loan agreement, the player was loaned from Santos FC to the
Respondent free of payment.
10.
Therefore, no solidarity contribution shall in principle be due to the Claimant.
11.
The Claimant however argues that the loan of the player to the Respondent constituted an
exchange of players between the Respondent and Santos FC, and that since the Respondent
swapped a player of a value of EUR 10,000,000 in exchange for the player’s services, the value
of the transfer of the player to the Respondent corresponded to EUR 10,000,000.
12.
In this regard, the DRC has in previous decisions granted solidarity contribution to training clubs
in instances where it could be established that an exchange of players took place, i.e. that two
clubs agreed to swap one of their contracted players for another. In such cases, the DRC was of
the opinion that there was an indirect financial agreement when clubs swapped players, since
said players had an economic value in the football market.
13.
Art. 12 par. 3 of the Procedural Rules, any party claiming a right on the basis of an alleged fact
shall carry the burden of proof.
14.
In the present dispute, the Claimant carries the burden of proving that the loan of the player
from Santos FC to the Respondent and the loan of Gonzalez from the Respondent to Santos FC
constituted an exchange of players, and that said exchange represented a value of EUR
10,000,000.
15.
In support of its allegations, the Claimant only submitted press articles which appear to suggest
that the players were exchanged since the two transactions occurred on the same day.
16.
The loan agreement does not contain any reference to the transfer of Gonzalez from the
Respondent to Santos FC.
17.
The two transfers were announced as individual transfers by Santos FC and the Respondent, and
not as part of an exchange of players.
18.
The loan agreement was terminated on 6 April 2019 and the player returned to the Respondent
whilst Gonzalez remained on loan with Santos FC until 6 February 2020.
19.
The mere fact that the same clubs were involved in two transfers for different players on the
same date does not necessarily mean that such clubs engaged in a swap of players.
20.
In the absence of conclusive evidence of the contrary, it is determined that the loan of the player
from Santos FC to the Respondent and the loan of Gonzalez from the Respondent to Santos FC
are two distinct transactions.
Page 7 of 10
TMS 6324
21.
As such, the allegation of the Claimant that the loan of the player to the Respondent was part
of an exchange of players shall be dismissed.
22.
Thus, it is determined that the player was indeed loaned free of payment to the Respondent,
and that as such no solidarity contribution is payable.
23.
Therefore, and in view of all the above, the claim of the Claimant is rejected.
24.
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).
Page 8 of 10
TMS 6324
III. DECISION
1.
The claim of the Claimant, Comercial FC, is rejected.
2.
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 Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
Page 9 of 10
TMS 6324
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
Page 10 of 10