Solidarity Contribution
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber (DRC)
passed on 20 May 2020,
in the following composition:
Geoff Thom ps on (England), Chairman
Jerom e Perlem uter (France), member
Angela Collins (Australia), member
on the claim presented by the club,
CD Gallegol S AS , Colombia
as Claimant
against the club,
Juv entus FC, Italy
as Respondent
regarding solidarity contribution in connection with the transfer
of the player Juan Guillermo Cuadrado Bello
I.
Facts of the cas e
1.
According to the player passport issued by the Football Association of Colombia
(hereinafter: the Colombian FA) on 19 February 2015, the player, Juan Guillermo
Cuadrado Bello (hereinafter: the player), born on 26 May 1988, was registered
with the Colombian clubs, PARMA F.C. and JAIKA BELENCITO (hereinafter jointly
referred as the absorbed clubs), as from 1 January 2003 until 31 December 2003
and as from 1 January 2004 until 31 December 2004, respectively.
2.
According to the information contained in the aforementioned player passport,
the season in Colombia follows the calendar year, i.e. it starts in January and ends
in December of the same year.
3.
By means of a fax dated 13 September 2017, CD Gallegol SAS (hereinafter: the
Claimant) contacted FIFA claiming its proportion of the solidarity contribution in
connection with the transfer of the player from the English club, Chelsea FC, to
the Italian club, Juventus FC.
4.
The Claimant first of all explained that, on 20 October 2015, on the occasion of
the merger by absorption approved by the Chamber of Commerce of Medellín, it
acquired the assets of the aforementioned Colombian clubs, PARMA F.C. and
JAIKA BELENCITO. In support of its statements, the Claimant provided a copy of
the “Certificate of existence and representation” (free translation from Spanish),
according to which the Claimant had succeeded the absorbed clubs in their rights
and obligations.
5.
In view of the above, the Claimant maintained that it was to be considered as “the
continuator” (free translation from Spanish) of the absorbed clubs’ rights and, as
such, the holder of the rights derived from the player’s training.
6.
On 6 October 2017, pursuant to Annexe 6 of the Regulations on the Status and
Transfer of Players (hereinafter: the Regulations), our services informed the
Claimant that, as from 1 October 2015, all the claims for solidarity contribution
must be submitted and managed through the Transfer Matching System
(hereinafter: the TMS). Having said this, our services also pointed out that the
claims should be entered in the TMS by the club holding a TMS account or, in the
case of a club without a TMS account, by the association concerned.
7.
On 10 October 2017, the Colombian FA informed our services that, according to
the Colombian sports law, the simplified joint-stock companies (SAS) could neither
get sports recognition nor join any sports league. Based on such statement, the
Solidarity contribution for the player Juan Guillermo Cuadrado Bello
(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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Colombian FA further sustained that, as the simplified joint-stock companies were
not part of the national sports system, the absorbed clubs were not entitled to
receive benefits of the associated football, namely solidarity contribution and/or
training compensation.
8.
In continuation, the Colombian FA maintained that the absorbed clubs appeared
in the player passport due to the fact that, at the beginning, the registration
system that operated in the Colombian FA, i.e. “the COMET System” (free
translation from Spanish), included all the clubs without distinction, regardless of
the affiliated or non-affiliated (guests) condition. Therefore, according to the
Colombian FA, the fact that non-affiliated clubs appeared in the player passport
did not implied, per se, the right of those clubs to claim solidarity contribution.
9.
Having said this, the Colombian FA further pointed out that PARMA F.C. and
JAIKA BELENCITO were never affiliated to the Colombian FA and, as such, it
reiterated that non-members of the associated football were excluded from the
distribution of solidarity contribution.
10.
Lastly, the Colombian FA stated that it would upload the Claimant’s claim in the
TMS, if the latter could sufficiently prove that the absorbed clubs had been duly
affiliated. In this respect, according to the information provided, on 25 September
2017, the Claimant was allegedly requested by the Colombian FA to provide the
relevant documents.
11.
On 30 October 2017, the Colombian FA sent a further correspondence indicating
that the Claimant had not completed nor remedied the deficiencies of its claim
form, as it could not provide evidences that the absorbed clubs were duly
affiliated to the Colombian FA during the player’s training. In this context, the
Colombian FA pointed out that the Claimant was unable to prove that the
absorbed clubs met the fundamental requirement of being part of the associated
football.
12.
Subsequently, by means of a further fax dated 1 December 2017, the Claimant
sent another correspondence informing FIFA that the Colombian FA, on 19
October 2017, refused to enter its claim via TMS, allegedly arguing that the
Claimant lacked legitimacy to lodge the relevant claim.
13.
Bearing in mind the foregoing, on 1 February 2018, FIFA requested the Colombian
FA to confirm whether the Claimant was affiliated to the Colombian FA and as to
whether or not said club was participating in any of the competitions organised
under the auspices of the Colombian FA.
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(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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14.
On 14 February 2018, as regards the affiliation of the Claimant, the Colombian FA
indicated that the Claimant, CD Gallegol SAS, was affiliated to the football league
of Antioquia. In this regard, the Colombian FA attached the copy of a document
issued by the football league of Antioquia on 16 August 2017, according to which
the Claimant was affiliated and participating as of 16 October 2014.
15.
Notwithstanding the above, with regard to the participation of the club, the
Colombian FA underlined that the football league of Antioquia did not confirm
whether, at that time, i.e. February 2018, the Claimant was still participating or
not.
16.
On 9 March 2018, FIFA informed the Claimant that Players’ Status was not in the
position to entertain its request, since FIFA could neither instruct the Colombian
FA to enter the claim of one of its affiliates in TMS nor create a TMS account for
the Claimant in order for it to enter its claim directly in TMS.
17.
Subsequently, on 5 March 2019, the Colombian FA lodged the claim via TMS on
behalf of the Claimant.
18.
The Claimant reiterated its initial arguments, maintaining that, as “the
continuator” of the absorbed clubs, it was entitled to receive the proportion of
solidarity contribution in connection with the transfer of the player from Chelsea
FC to Juventus FC. In support of its statements, and in order to prove its
entitlement to receive solidarity contribution for the period in which the player
was registered with the absorbed clubs, the Claimant referred to the following
documents:
a)
The document according to which the football league of Antioquia
confirmed that the Claimant (CD Gallegol SAS) was affiliated and
participating as of 16 October 2014 (cf. point I.14. above);
b) The player passport issued by the Colombian FA on 19 February 2015 (cf.
point I.1. above);
c) The “Certificate of existence and representation” (cf. point I.4. above).
19.
According to the Claimant, as the legal and sporting successor of the absorbed
clubs, it claimed 0.75% of the total transfer fee (15% of the 5% of the solidarity
contribution), as follows:
- 0.25% of the total transfer fee, corresponding to the period as from 1
January 2003 until 31 December 2003 (season 2003 - 15th birthday);
- 0.5% of the total transfer fee, corresponding to the period as from 1
January 2004 until 31 December 2004 (season 2004 - 16th birthday).
Solidarity contribution for the player Juan Guillermo Cuadrado Bello
(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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20.
Despite having uploaded the Claimant’s claim, the Colombian FA wished to point
out, once again, that it did not agree with the Claimant’s allegations. As per the
Colombian FA, the Claimant did not provide any evidence that the absorbed clubs,
i.e. PARMA F.C. and JAIKA BELENCITO, were duly affiliated at the time of the
player’s training, i.e. as from 1 January 2003 until 31 December 2004.
21.
In this context, the Colombian FA reiterated that the previous version of the
“COMET System” used to include all the clubs, regardless of their condition of
affiliated or non-affiliated (guests). For this reason, the Colombian FA highlighted
that, even though the absorbed clubs appeared in the player passport dated 19
February 2015, it did not necessarily mean that those clubs could claim solidarity
contribution.
22.
In this regard, the Colombian FA sustained that the COMET System had been
subsequently amended, avoiding the inclusion of non-affiliated (guests) clubs in
the player passport.
23.
Having said this, the Colombian FA pointed out that the evidences provided by the
Claimant showed that the absorbed clubs had been participating as guests, not as
members. Consequently, as per the Colombian FA, although the absorbed clubs
participated in tournaments organized by the football league of Antioquia, “they
had no seat as members with the right to speak and vote in the General Assembly
of Affiliates” (free translation from Spanish).
24.
On the other hand, the Colombian FA stressed, once again, that the clubs
constituted as simplified joint-stock companies (SAS) could not get sports
recognition nor join a sports league and, as a consequence thereof, the Colombian
FA maintained that the Claimant was not entitled to receive solidarity
contribution. In support of its statements, the Colombian FA uploaded a copy of a
document issued by the Administrative Department of Sport, Recreation, Physical
Activity and the Use of Free Time (hereinafter: COLDEPORTES), dated 14 January
2016, according to which the clubs constituted as simplified joint-stock companies
(SAS) can neither be affiliated to a sports league nor be part of the national sports
system.
25.
Lastly, the Colombian FA further provided a copy of a document issued by the
football league of Antioquia on 20 March 2015, according to which the absorbed
clubs were not affiliated.
26.
In reply to the Claimant’s claim, the Respondent, for its part, held that it had
“already duly and properly paid the solidarity contribution due in connection with
the transfer of the player Juan Guillermo Cuadrado Bello from Chelsea FC,
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(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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England. Consequently, Gallegol’s claim is totally ungrounded”. In this context,
the Respondent provided a copy of the payments made in favour of the clubs that
appeared in the player passport issued by the Colombian FA on 23 September
2015.
27.
In this regard, the Respondent uploaded a copy of the player passport issued by
the Colombian FA on 23 September 2015, according to which it appeared that the
player was trained for the first time with the Colombian club, LEONES F.C., as from
01 January 2005.
28.
In addition, the Respondent further stated the following:
“a) Parma F.C. S.A.S. and Ja&Ka Belencito S.A.S. are not affiliated to the [the
Colombian FA];
b) no evidences have been given to [the Colombian FA] with respect to the
activities performed by the two Clubs to train the player;
c) pursuant to the applicable [Colombian] law, Gallegol, Parma F.C. S.A.S. and
Ja&Ka Belencito S.A.S. are not entitled to act as sport entities nor to be
affiliated to a Liga Deportiva […]”.
29.
Lastly, in support of its argumentations, the Respondent provided a letter dated 2
October 2015, by means of which the Colombian FA confirmed that the absorbed
clubs were not part of the organized football.
II.
Cons iderations of the Dis pute Res olution Cham ber (DRC)
1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the
DRC or the Chamber) analysed whether it was competent to deal with the case at
hand. In this respect, it took note of the fact that the present matter was
submitted to FIFA on 5 March 2019 and decided on 20 May 2020. Taking into
account the wording of art. 21 of the 2019 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural
Rules is applicable to the matter at hand.
2.
Subsequently, the DRC referred to art. 3 of the Procedural Rules, which states that
the Dispute Resolution Chamber shall examine its jurisdiction in light of arts 22 to
24 of the Regulations on the Status and Transfer of Players (edition 2020). In
accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22
lit. d) of the Regulations on the Status and Transfer of Players, the Chamber is
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(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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competent to decide on the present dispute relating to solidarity mechanism
between a Colombian club and an Italian club.
3.
Furthermore, and taking into consideration that the player was registered with
the Respondent on 9 September 2016, the DRC analysed which regulations should
be applicable as to the substance of the matter. In this respect, it confirmed that in
accordance with art. 26 par. 1 and par. 2 of the Regulations on the Status and
Transfer of Players (edition 2020), the 2016 version of the said Regulations
(hereinafter: the Regulations) is applicable to the present matter as to the
substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the DRC entered into the substance of the matter. In this respect, the
members of the Chamber started by acknowledging all the aforementioned facts
as well as the arguments and the documentation submitted by the parties. The
DRC, however, emphasised that in the following considerations it will refer only to
the facts, arguments and documentary evidence, which it considered pertinent for
the assessment of the matter at hand. In particular, the Chamber recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of Regulations, any
documentation or evidence generated or contained in the TMS.
5.
Having established the above, the Chamber started by acknowledging that the
Claimant was claiming solidarity contribution from the Respondent in connection
with the transfer of the player to the Respondent.
6.
With due considerations to the facts of the present case, the Chamber first of all
turned its attention to the question as to whether or not the Claimant, based on
the FIFA Regulations, is entitled to receive solidarity contribution from the
Respondent in connection with the transfer of the player from the English club,
Chelsea FC, to the Respondent.
7.
First, the members of the Chamber went on to examine the Claimant’s alleged
succession of the rights and obligations of the absorbed clubs. In this respect,
after having analysed the “Certificate of existence and representation”
provided by the Claimant (cf. point I.4 above), the DRC concluded that the
Claimant had sufficiently proved that it was to be considered as the legal and
sporting successor of the absorbed clubs, i.e. PARMA F.C. and JAIKA
BELENCITO.
8.
In continuation, the Chamber referred to art. 1 of the FIFA Regulations, in
particular, to its par. 1 which stipulates that the FIFA Regulations “lay down global
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(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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and binding rules concerning the status of players, their eligibility to participate in
organised football, and their transfer between clubs belonging to different
associations”.
9.
In respect to the above, the members of the Chamber observed that the parties
provided documentation that evidenced that the absorbed clubs i.e. PARMA FC
and JAIKA BELENCITO, had been participating as guests.
10.
Notwithstanding the above, and in light of the arguments put forward by the
parties, the DRC wished to emphasize that the Claimant was unable to prove that
the absorbed clubs, at some point, were duly affiliated to the Colombian FA or
any sports league.
11.
In this respect, the Chamber observed that it had to examine whether the
absorbed clubs, i.e. PARMA F.C. and JAIKA BELENCITO, clubs not affiliated to the
Colombian FA or any sports league, would had been entitled to receive solidarity
contribution from the Respondent in connection with the transfer of the player
from Chelsea FC to the Respondent.
12.
The Chamber was of the firm and unanimous opinion that this could not be the
case. Indeed, establishing that the rules and regulations of an association would
also apply to an entity not affiliated to such association would clearly be
incompatible with the general principles of association law, in particular, with the
principle of freedom of association which established that every association can, in
principle, accept or refuse any applicant for membership. In the particular matter
at hand, it had been the Colombian FA’s stance to only accept those clubs as
members that are participating in the Colombian league, i.e. in the leagues
organised under the auspices of the Colombian FA, and, thus, to limit the
application of its regulations and statutes to that particular scope. Taking into
consideration that the Claimant could not sufficiently prove that the absorbed
clubs were members of the Colombian FA, the Chamber saw no legal basis to
uphold the assumption that regulations issued by an association were applicable
to legal entities that were not affiliated to the relevant association.
13.
What is more, the members of the Chamber wished to emphasize that, according
to the content of the regulations and statutes of the Colombian FA, it was evident
that the Colombian FA had excluded non-affiliated clubs from its solidarity
mechanism system.
14.
On account of the above, the Chamber deemed that the Claimant could not derive
an entitlement to solidarity contribution from the Colombian FA Regulations. In
view of the foregoing, the members of the Chamber decided to reject the
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(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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Claimant’s claim for solidarity contribution based on the Colombian FA
Regulations.
15.
Lastly, the DRC referred to art. 25 par. 2 of the Regulations in combination with
art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before
the DRC relating to disputes regarding training compensation and the solidarity
mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further
stipulated that the costs are to be borne in consideration of the parties’ degree of
success in the proceedings and, in accordance with Annexe A of the Procedural
Rules, the costs of the proceedings are to be levied on the basis of the amount in
dispute.
16.
Considering the particularities of the present matter, the members of the
Chamber determined the final amount of costs of the current proceedings were to
be limited to the amount of CHF 1,000.
17.
In view of all of the above, the Dispute Resolution Chamber concluded that the
amount of CHF 1,000 had to be paid by the Claimant to cover the costs of the
present proceedings.
*****
Solidarity contribution for the player Juan Guillermo Cuadrado Bello
(CD Gallegol SAS, Colombia / Juventus FC, Italy)
9/10
III.
Decision of the Dis pute Res olution Cham ber (DRC)
1.
The claim of the Claimant, CD Gallegol SAS, is rejected.
2.
The final costs of the proceedings in the amount of CHF 1,000 are to be paid by
the Claimant to FIFA to the following bank account with reference to case no. TMS
3963:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the m otiv ated decision (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent
to the CAS directly within 21 days of receipt of notification of this decision and shall
contain all the elements in accordance with point 2 of the directives issued by the CAS,
a copy of which we enclose hereto. Within another 10 days following the expiry of the
time limit for filing the statement of appeal, the appellant shall file a brief stating the
facts and legal arguments giving rise to the appeal with the CAS (cf. point 4 of the
directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Dispute Resolution Chamber:
_______________________
Emilio García Silvero
Chief Legal Officer
Solidarity contribution for the player Juan Guillermo Cuadrado Bello
(CD Gallegol SAS, Colombia / Juventus FC, Italy)
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