Solidarity Contribution
Texto da decisão
REF TMS 7522
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 3 September 2021
regarding solidarity contribution in connection with the transfer of the player Vlad Iulian
Chiriches from from SSC Napoli (Italy) to Sassuolo Calcio S.r.l. (Italy)
BY:
Roy Verm eer (Netherlands), Single Judge of the sub-committee of
the Dispute Resolution Chamber
CLAIMANT:
ACSFC Ardealul, Romania
RESPONDENT:
Sassuolo Calcio S.r.l., Italy
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REF TMS 7522
I. FACTS OF THE CASE
Player:
Vlad Iulian Chiriches
Date of birth:
14 November 1989
Player passport:
issued by the Romanian Football Federation (‘FRF’) on 7 November 2013 (‘FRF
Passport’)
Season
01/02
02/03
03/04
04/05
04/05
05/06
06/07
07/08
07/08
07/08
08/09
08/09
09/10
10/11
10/11
11/12
11/12
12/13
13/14
Club(s)
‘LPS Bacau’
‘LPS Bacau’
‘LPS Bacau’
‘LPS Bacau’
‘FC Ardealul Cluj’
‘FC Ardealul Cluj’
‘FC Ardealul Cluj’
‘FC Ardealul Cluj’
‘Benfica SAD’
‘FC Ardealul Cluj’
‘FC Ardealul Cluj’
‘FC International Curtea de Arges’
‘FC International Curtea de Arges’
‘FC International Curtea de Arges’
‘FC Pandurii Lignitul Targu Jiu’
‘FC Pandurii Lignitul Targu Jiu’
‘FC Steaua Bucuresti’
‘FC Steaua Bucuresti’
‘FC Steaua Bucuresti’
Other Player passport:
Season
01/02
02/03
03/04
04/05
05/06
06/07
07/08
08/09
09/10
Club(s)
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Registration dates
03.06.2002 – 30.06.2002
01.07.2002 – 30.06.2003
01.07.2003 – 30.06.2004
01.07.2004 – 23.03.2005
23.03.2005 – 30.06.2005
01.07.2005 – 30.06.2006
01.07.2006 – 30.06.2007
01.07.2007 – 04.10.2007
04.10.2007 – 30.06.2008
30.06.2008 – 30.06.2008
01.07.2008 – 21.07.2008
21.07.2008 – 30.06.2009
01.07.2009 – 30.06.2010
01.07.2010 – 22.07.2010
22.07.2010 – 30.06.2011
01.07.2011 – 01.02.2012
01.02.2012 – 30.06.2012
01.07.2012 – 30.06.2013
01.07.2013 – 02.09.2013
Status
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Temporary)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
issued by Federazione Italiana Giuoco Calcio (‘FIGC’) on 17
February 2021 (‘FIGC Passport’)
Registration dates
unknown – 30.06.2002
01.07.2002 – 30.06.2003
01.07.2003 – 30.06.2004
01.07.2004 – 30.06.2005
01.07.2005 – 30.06.2006
01.07.2006 – 30.06.2007
01.07.2007 – 30.06.2008
01.07.2008 – 30.06.2009
01.07.2009 – 30.06.2010
Status
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
Unknown
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REF TMS 7522
10/11
11/12
12/13
13/14
14/15
15/16
16/17
17/18
18/19
19/20
19/20
20/21
Unknown
Unknown
Unknown
Unknown
Unknown
‘Napoli S.p.a.’
‘Napoli S.p.a.’
‘Napoli S.p.a.’
‘Napoli S.p.a.’
‘Napoli S.p.a.’
‘Sassuolo Calcio S.r.l.’
‘Sassuolo Calcio S.r.l.’
01.07.2010 – 30.06.2011
01.07.2011 – 30.06.2012
01.07.2012 – 30.06.2013
01.07.2013 – 30.06.2014
01.07.2014 – 04.08.2015
05.08.2015 – 30.06.2016
01.07.2016 – 30.06.2017
01.07.2017 – 30.06.2018
01.07.2018 – 30.06.2019
01.07.2019 – 01.09.2019
02.09.2019 – 31.08.2020
01.09.2020 – present
Unknown
Unknown
Unknown
Unknown
Unknown
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Temporary)
Professional (Permanent)
Date of temporary transfer:
2 September 2019 from SSC Napoli (Italy) to Sassuolo Calcio
S.r.l. (Italy) (‘Temporary Transfer’)
Conditions:
Fixed temporary transfer fee of EUR 2,500,000 payable on 2
September 2019
Conditional transfer fees:
(i)
Payments:
a. EUR 250,000 for every 10 games of the Player with
the Respondent (up to 40 games and EUR
1,000,000; not limited to a single sporting season);
b. EUR 500,000 in case the Respondent does not get
relegated from Serie A at the end of the season or
competes in Serie A in the following season (after
play-out games) (up to 2 times maximum, i.e. EUR
1,000,000);
c. EUR 500,000 in case the Respondent qualifies to
the UEFA Europa League at the end of the season
or competes in Serie A the following season (up to
2 times maximum, i.e. EUR 1,000,000);
d. EUR 500,000 in case the Respondent qualifies for
the UEFA Champions League at the end of the
season or competes in Serie A the following season
(up to 2 times maximum, i.e. EUR 1,000,000); and
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REF TMS 7522
(ii)
obligation for Sassuolo Calcio S.r.l. to permanently
transfer the Player “(…) at the first point in Serie A of
Sassuolo during the 2019/2020 season as of 01.02.2020
OR as the first presence of the player in Sassuolo’s team
after 01.02.2020” (‘Purchase Obligation Clause’)
“(…) payable in the season after the occurrence of the
purchase obligation in line with the annual
championship calendar” in the amount of EUR
6,500,000 payable as follows:
a. 1st season: EUR 3,000,000 on 1 September 2020;
b. 2nd season: EUR 2,000,000 on 1 July 2021; and
c. 3rd season: EUR 1,500,000 on 1 July 2022.
Date of permanent transfer:
1 September 2020 from SSC Napoli (Italy) to Sassuolo Calcio
S.r.l. (Italy) (‘Permanent Transfer’)
Claimant club:
ACSFC Ardealul (Romania)
Respondent club:
Sassuolo Calcio S.r.l. (Italy)
Former club:
SSC Napoli (Italy)
Claim and Response:
1.
On 31 December 2021, the Claimant requested the payment by the Respondent of a sum
corresponding to 45% of the solidarity contribution generated by the transfer fee. The Claimant
did not request the payment of interest.
2.
On 19 February 2021, FIGC provided the FIFA administration with the FIGC Passport informing
it that the Player had been permanently registered with the Respondent as from 1 September
2019.
3.
On 18 March 2021, the relevant financial details of the Permanent Transfer were disclosed to
the Claimant. The FIFA administration informed the Claimant that it was of the opinion that the
Claimant is not entitled to receive any solidarity contribution from the Temporary Transfer
because it had occurred before 1 July 2020, the date on which the application of the solidarity
mechanism to national transfers of an international dimension came into force.
4.
On 24 March 2020 the Claimant amended its claim and requested the following payments from
the Respondent:
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REF TMS 7522
(i)
solidarity contribution from the first instalment of the Permanent Transfer fee;
(ii)
interest of 5% p.a. on the solidarity contribution as of the due date;
(iii)
EUR 1,785.00 as reimbursement of its legal expenses (‘Legal Expenses’); and
(iv)
8% of the total awarded sum as a success fee to its legal representatives (‘Additional
Legal Expenses’).
5.
On 26 March 2021, the FIFA administration submitted a proposal to the parties, informing them
that it was of the opinion that the Respondent should pay the amount of EUR 36,915.00 + 5%
interest p.a. to the Claimant for the Permanent Transfer.
6.
On 9 April 2021, the Claimant accepted the proposal,
7.
On 15 April 2021, the Respondent rejected the proposal by arguing that the Claimant is not
entitled to any solidarity contribution.
8.
The Respondent first underlined that the Permanent Transfer is not to be considered as a national
transfer in the context of the FIFA RSTP provisions on the solidarity contribution mechanism.
According to the Respondent, the Permanent Transfer, which had occurred on 1 September
2020, occurred after the date of 1 July 2020 when the application of the FIFA RSTP article 22,
par. e) governing solidarity contribution mechanisms from national transfers came into force.
9.
Therefore, the Respondent argued that, pursuant to article 26, par. 2 of the RSTP, a dispute
concerning solidarity contribution should be assessed according to the regulations in force when
the contract at the centre of the dispute was signed, or when the disputed facts arose, i.e. the
June 2019 edition of the RSTP. The Respondent drew the attention to the fact that the June
2020 edition of the RSTP introduced the solidarity contribution system on the national transfers
for transfers occurring after 1 July 2020. The Respondent argued that the Permanent Transfer
should not be viewed as such but rather as an integral part of the Temporary Transfer in the
transfer agreement from August 2019.
10.
Second, the Respondent argued that the Purchase Obligation Clause was not optional but
mandatory meaning that the Former Club and the Respondent wanted to conclude a permanent
transfer with delayed payment with intentionally low criteria for its triggering. In that sense, the
Respondent provided evidence in the form of its annual financial statement from 31 December
2020 in which the Player was listed as a “permanent acquisition” with a professional contract
until 30 June 2023. Further, the Respondent argued that CAS had established in CAS
2018/A/5809 that such kinds of agreements shall be considered with a suspensory time limit
and not a condition because a contract is conditional “(…) if its binding nature is made
dependent on the occurrence of an event that is not certain to happen.” The Respondent argued
that this was not the case at the matter at hand, i.e. the condition was almost certain to occur.
Finally, the Respondent argued that similar transfers are fairly common in Italy and even
regulated in FIGC’s transfer regulations but provided no evidence for its claim.
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REF TMS 7522
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): January 2021
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): June 2019
Decision:
1.
The Claimant requested the payment of the solidarity contribution on the national transfer of
the Player to the Respondent, i.e. the Permanent Transfer.
2.
The Respondent contested the entitlement of the Claimant to receive its proportion of the
solidarity contribution arguing the inapplicability of the provisions related to the payment of
solidarity contribution to national transfers in the matter at hand.
3.
The FIFA Circular no. 1709 of 13 February 2020 indicates, inter alia, that the solidarity
mechanism had been extended to national transfers with an international dimension as from 1
July 2020.
4.
The obligation to pay the solidarity contribution on national transfers with an international
dimension was introduced with the June 2020 edition of the RSTP, which came into force on 1
July 2020.
5.
According to art. 26 par. 2 of the RSTP, solidarity contribution disputes “shall be assessed
according to the regulations that were in force when the contract at the centre of the dispute
was signed, or when the disputed facts arose”.
6.
The transfer agreement was concluded on 30 August 2019 and indicated that the Respondent
had the obligation to convert the Temporary Transfer into a Permanent Transfer upon the
occurrence of a condition within the Purchase Obligation Clause.
7.
It remained uncontested that, on an unknown date between 1 February 2020 and 1 September
2020, the aforementioned conditions were met and the option to permanently register the
Player with the Respondent was triggered. It also remained uncontested that this occurred
without further intervention of the parties to the transfer agreement.
8.
When the transfer agreement was concluded, the FIFA Circular no. 1709 had not been issued
yet and the 2019 edition of the RSTP was still applicable. At that time no solidarity contribution
was payable in the context of national transfers.
9.
When the option to permanently transfer the Player to the Respondent was triggered, i.e. after
1 February 2020, the June 2020 edition of the RSTP was not yet into force and no solidarity
contribution was due in case of a national transfer of a player.
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REF TMS 7522
10.
Applying the June 2020 edition to a transaction that was agreed between the parties one year
before as well as the Purchase Obligation Clause that was triggered before its entering into
force, when solidarity contribution was not yet payable in the context of a national transfer,
would go against the principle of legal certainty. It would not be fair for the parties to be
subjected to a provision that was not applicable at the moment they discussed the possibility of
the Player’s temporary transfer to become permanent nor when the loan became de facto
permanent with the option having been activated.
11.
In addition, it has to be mentioned that the transfer agreement did not foresee for the parties
to undertake further discussions as to the Permanent Transfer of the Player past the Respondent
having obtained one point in the 2019/20 Serie A championship after 1 February 2020, or,
alternatively, with the Player’s first appearance for the Respondent’s first team in official matches
after 1 February 2020.
12.
As a result of all of the aforementioned, the applicability of the provisions related to the payment
of solidarity contribution on national transfers that are included in the RSTP as of the entering
into force of the June 2020 edition has in casu to be rejected.
13.
The above reasoning remains in line with the wording of art. 26 par. 2 of the RSTP in accordance
with which the applicable edition of the RSTP to solidarity contribution disputes relies on when
the disputed fact arose or when the contract at the centre of the dispute was signed.
14.
Therefore, the Single Judge of the sub-committee of the DRC established that the Claimant is
not entitled to receive any solidarity contribution on the basis of the Permanent Transfer of the
Player.
15.
Concerning the Claimant’s claim for the reimbursement of the Legal Expenses and the Additional
Legal Expenses, it is rejected on the basis of article 18, par. 4 RSTP.
16.
Consequently, the claim of the Claimant is rejected.
17.
No procedural costs are levied (cfr. Art 18.1 of Procedural Rules).
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REF TMS 7522
III. DECISION
1.
The claim of the Claimant, ACSFC Ardealul, 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 Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 7522
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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