Dispute Resolution Chamber
Texto da decisão
TMS 6785
Decision of the
Single Judge of the sub-committee of
the Dispute Resolution Chamber
passed on 15 February 2021
regarding solidarity contribution for the transfer of the player Diego da Silva
Costa
BY:
Stefano La Porta (Italy), Single Judge of the sub-committee of the Dispute
Resolution Chamber
CLAIMANT:
Atlético Clube Lagartense, Brazil
RESPONDENT:
Atlético Madrid, Spain
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TMS 6785
I. FACTS OF THE CASE
Player:
Diego da Silva Costa
Date of birth:
7 October 1988
Sporting season:
1 January to 31 December (Brazil)
Date of transfer:
- On loan: 2 January 2018, Chelsea FA (England) to Atlético Madrid (Spain)
- From loan to permanent: 3 July 2018, Chelsea FA (England) to Atlético Madrid (Spain)
Financial conditions:
- Loan fee of USD 5,000,000, payable as follows:
(i)
EUR 2,500,000 on 6 January 2018; and
(ii)
EUR 2,500,000 on 30 June 2018.
- Transfer fee of USD 50,000,000, payable as follows:
(i)
EUR 12,500,000 on 30 July 2018;
(ii)
EUR 12,500,000 on 30 July 2019;
(iii)
EUR 12,500,000 on 30 July 2020; and
(iv)
EUR 12,500,000 on 30 July 2021.
Claimant club:
Atlético Clube Lagartense (Brazil)
Respondent club:
Atlético Madrid (Spain)
Claim and Response:
1.
On 15 September 2020, the Claimant lodged a claim in front of FIFA requesting the payment of
the solidarity contribution in connection with the amounts paid by the Respondent to Chelsea
FC (hereinafter: “Chelsea”) for the loan and permanent transfer of the player to the Respondent.
2.
The claim of the Claimant is based on the player passport issued by the Confederação Brasileira
de Futebol (CBF) on 10 January 2018 (hereinafter: “the 1st player passport”), which contains the
following information:
Year
2000 to 2000
2000 to 2003
2003 to 2003
2003 to 2003
2004 to 2004
2004 to 2005
2005 to 2005
Period
From 01 Jan to 22 Oct
From 23 Oct to 13 Feb
From 14 Feb to 17 Feb
From 18 Feb to 31 Dec
From 01 Jan to 04 Jun
From 05 Jun to 31 Mar
From 01 Apr to 30 Aug
Club
n/a
Lagartense
n/a
Gremio
Gremio
Lagartense
Barcelona
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3.
According to the Claimant, the Respondent had agreed to pay the total amount of EUR
201,743.98 as solidarity contribution, i.e. EUR 18,340.36 in connection with the loan of the
player and EUR 183,403.62 for his permanent transfer to the Respondent. In this context, the
Claimant referred to several e-mails allegedly exchanged with the Respondent between 17 and
18 October 2018, which are on file.
4.
The Claimant clarified that on the basis of the 1st player passport it would be entitled to receive
0,998% of the “compensation payable” but that the parties had finally agreed on “a final sum
payable in concept of solidarity mechanism, which renders moot both the Player Passport and
the effective amount agreed between [the Respondent] and Chelsea for the Player’s transfer”.
5.
In view of the above, the Claimant deemed being entitled to receive from the Respondent the
total amount of EUR 201,743.98, plus 5% interest p.a. as follows:
(i)
(ii)
(iii)
(iv)
EUR 18,340.36 + EUR 45,850.91 as from 30 August 2018;
EUR 45,850.91 on 30 August 2019;
EUR 45,850.91 on 30 August 2020; and
EUR 45,850.91 on 30 August 2021.
6.
Finally, the Claimant argued that because the parties had “formally agreed on the amounts and
schedule of payment of solidarity mechanism” on 18 October 2018, “in line with the established
jurisprudence of FIFA and the Court of Arbitration for Sport […], the 02 year statute of limitation
count only from either (i) the date of the scheduled payments (which are still ongoing) or (ii) 18
October 2018, when the parties agreed in good faith for the payment of the amounts due”.
7.
On 16 October 2020, the FIFA administration submitted a proposal to the parties suggesting
that the Respondent should pay to the Claimant the amount of EUR 247,250, corresponding to
19.78% of the total solidarity contribution, plus 5% interest p.a. as from the due dates.
8.
The proposal was based on the second and the third instalment due as transfer fee only.
9.
The proposal was rejected by both the Claimant and the Respondent.
10.
The Claimant did “not accept the premise that part of the amounts due [were] time-barred”.
11.
The Respondent rejected the Claimant’s claim alleging that the CBF had issued two different
player passports that contained contradictory information and that it had calculated the amount
due as solidarity contribution on the basis of the following player passport issued by the CBF on
7 February 2018 (“the 2nd player passport”):
Year
2000 to 2000
2000 to 2002
2002 to 2002
2002 to 2003
2003 to 2003
Period
From 01 Jan to 22 Oct
From 23 Oct to 31 Mar
From 01 Apr to 07 Apr
From 08 Apr to 17 Feb
From 18 Feb to 31 Dec
Club
n/a
Lagartense
n/a
Gremio
Gremio
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TMS 6785
2004 to 2004
2004 to 2005
2005 to 2005
From 01 Jan to 04 Jun
From 05 Jun to 31 Mar
From 01 Apr to 30 Aug
Gremio
Gremio / SE
Barcelona
12.
The Respondent further stated that it had already paid solidarity contribution to Gremio on the
basis of the registration dates indicated in the 2nd player passport.
13.
The Respondent added that the amounts of solidarity contribution indicated in the exchange of
e-mails that occurred in October 2018 were based on the information contained in the 2nd player
passport and that the Claimant was aware of this.
14.
Furthermore, referring to the 2nd player passport, the Respondent stated that according to its
calculations, the Claimant was entitled to receive EUR 183,403.61. However, as per the
Respondent, at that time only the amount of EUR 91,701.82 was to be paid to the Claimant.
15.
In addition, the Respondent sustained having received a letter from the Royal Spanish Football
Federation (RFEF), by means of which the CBF would have informed the latter that the Claimant
had been condemned to pay to the “Tribunal Regional do Trabalho da 20ª Regiao” (hereinafter,
“the Labour Court”) the amount of R$ 450,251.37 and that therefore “any amount due to [the
Claimant]” was to be paid directly to the Labour Court. In support of its allegation, the
Respondent submitted two documents written in Portuguese: (i) the letter received from the
RFEF, dated 3 October 2018; and (ii) the letter of the Brazilian Labour Court, dated 22 August
2018.
16.
In its replica, the Claimant deemed that the player passport to take into account was the 1st
player passport, i.e. the one issued by the CBF on 10 January 2018, as “no amendments are
allowed to a player Player’s Passport after his transfer and registration”.
17.
In addition, referring to the exchange of e-mails occurred in October 2018, the Claimant further
argued that the Respondent’s acknowledgement of debt constituted “a valid agreement for
payment, and the statute of limitation should start counting as of that date”.
18.
Lastly, the Claimant held that the Respondent’s allegation of not having paid the solidarity “due
to a request by the [Labour Court]” was “unfounded and preposterous”.
19.
In its duplica, the Respondent highlighted that the payment of solidarity contribution had been
delayed due to the fact that the Claimant had not clarified the situation in connection with the
Brazilian Labour Court’s warrant.
20.
On 5 January 2021, the CBF confirmed to FIFA that the 2nd player passport was the one that
included the accurate history of the player.
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TMS 6785
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): January 2018 edition.
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): 2021 edition.
Jurisdiction:
Yes, uncontested.
Admissible:
Yes, uncontested.
Decision:
21.
The Claimant is requesting the payment of its proportion of the solidarity contribution due in
connection with the player’s transfer to the Respondent.
22.
The Respondent contested the information included in the 1st player passport arguing that the
career of the player was to be based on the 2nd player passport.
23.
The CBF confirmed the accuracy of the information included in the 2nd player passport.
24.
As a result, the 2nd player passport is the one to be taken into account while assessing the present
matter.
25.
In accordance with the 2nd player passport, the player was registered with the Claimant as from
23 October 2000 until 31 March 2002.
26.
According to the information contained in the Transfer Matching System (TMS), Chelsea and
the Respondent agreed upon the following payments:
(i)
USD 2,500,000 on 6 January 2018 (first instalment of the loan fee);
(ii)
USD 2,500,000 on 30 June 2018 (second instalment of the loan fee);
(iii)
USD 12,500,000 on 30 July 2018 (first instalment of the transfer fee);
(iv)
USD 12,500,000 on 30 July 2019 (second instalment of the transfer fee);
(v)
USD 12,500,000 on 30 July 2020 (third instalment of the transfer fee); and
(vi)
USD 12,500,000 on 30 July 2021 (fourth instalment of the transfer fee).
27.
In accordance with art. 2 par. 1 of Annexe 5 of the RSTP, in case of contingent payments,
solidarity contribution shall be paid by the new club “30 days after the date of such payments”.
As such, the solidarity contribution would be due, in principle, on the followings dates:
(i)
On 6 February 2018 (in connection with the first instalment of the loan fee);
(ii)
On 31 July 2018 (in connection with the second instalment of the loan fee);
(iii)
On 30 August 2018 (in connection with the first instalment of the transfer fee);
(iv)
On 30 August 2019 (in connection with the second instalment of the transfer fee);
(v)
On 30 August 2020 (in connection with the third instalment of the transfer fee); and
(vi)
On 30 August 2021 (in connection with the fourth instalment of the transfer fee).
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28.
It remained undisputed that the Claimant and the Respondent exchanged e-mails between 17
and 18 October 2018.
29.
It also remained undisputed that by means of an e-mail dated 18 October 2018, the Respondent
acknowledged owing the Claimant the total amount of EUR 201,743.98 as follows: (i) EUR
18,340.36, corresponding to the solidarity contribution due as a result of the loan of the player
to the Respondent; and (ii) EUR 183,403.62, corresponding to the solidarity contribution payable
in connection with the permanent transfer of the player to the Respondent.
30.
As per the provisions of art. 25 par. 5 of the RSTP, the Dispute Resolution Chamber (DRC) “shall
not hear any case subject to these regulations if more than two years have elapsed since the
event giving rise to the dispute”.
31.
On several occasions, the Court of Arbitration for Sport (CAS) has confirmed that art. 25 par.5
of the RSTP contains a lacuna with regard to the possible interruption of the prescription period
and has recognized that under certain circumstances arts. 135 and 138 of the Swiss Code of
Obligations (SCO) additionally apply.
32.
As recognized by the CAS, the 2 years prescription period provided for in art. 25 par. 5 of the
RSTP can be interrupted by a debtor acknowledging its debt against the creditor in line with art.
135 of the SCO.
33.
In view of the above, it can be concluded that the acknowledgment of debt by the Respondent
on 18 October 2018 interrupted the prescription of a possible claim of the Claimant related to
the payment of solidarity contribution resulting from the first and the second instalments of the
loan fee.
34.
The CAS further recognized that in similar situations, and in line with article 137(1) of the SCO,
“a new prescriptive period commences as of the date of the interruption”.
35.
As a result, it can be determined that with the relevant acknowledgment of debt by the
Respondent on 18 October 2018 a new prescription period of two years started.
36.
Hence, and taking into account that the claim of the Claimant was lodged on 15 September
2020, the request of the latter was filed within the two-year limitation period and is therefore
admissible.
37.
It remained uncontested that the Respondent did not pay to the Claimant its proportion of the
solidarity contribution generated by the loan fee and the first three instalments due as transfer
fee.
38.
Taking into account the information included in the 2nd player passport (cf. point II.25. above),
the Claimant is entitled to receive its proportion of the due solidarity contribution for the training
and education provided to the player during the course of the seasons of the player’s 12th, 13th
and 14th birthdays .
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TMS 6785
39.
As per art. 1 par. 1 of Annexe 5 of the RSTP, solidarity contribution for the season of a player’s
12th, 13th and 14th birthdays shall amount to 5% of the total solidarity contribution for each
season.
40.
If a player is registered for less than a year this amount shall be calculated pro rata (cf. art. 1 par.
1 of Annexe 5 of the RSTP).
41.
Taking into account the time that the player was registered with the Claimant as established in
point II.25. above, the Claimant is entitled to receive solidarity contribution as follows:
(i)
(ii)
(iii)
0.96% of the total solidarity contribution for the season of the player’s 12th birthday;
5% of the total solidarity contribution for the season of the player’s 13th birthday; and
1.23% of the total solidarity contribution for the season of the player’s 14th birthday.
42.
In view of the above, the Claimant would be, in principle, entitled to receive the sum of EUR
152,787.50, corresponding to 7.19% of the solidarity contribution.
43.
Notwithstanding the above, considering the Respondent’s acknowledgement of debt of October
2018 (cf. point I.3. above), it is considered that the amount to be taken into account as solidarity
contribution amounts to the total sum of EUR 201,743.98.
44.
However, it was noted that the fourth instalment of the transfer fee was to be paid to Chelsea
on 30 July 2021 and, consequently, any amount payable as solidarity contribution on such
instalment would only fall due on 30 August 2021. As such, the amount of solidarity contribution
agreed in connection with the fourth instalment of the transfer fee, i.e. EUR 45,850.91, was not
taken into account by the judge.
45.
In view of the above, the Respondent has to pay to the Claimant the amount of EUR 155,893.07
(EUR 201,743.98 - EUR 45.850.91) as solidarity contribution.
46.
Finally and because the Respondent failed to provide a translation into one of the official FIFA
languages of the alleged documentation received by RFEF (cf. point I.15. above), in accordance
with the provisions of art. 9 par. 1 lit. e) of the Procedural Rules, the documentation in question
cannot be taken into account. Hence and in line with art. 12 par. 3 of the Procedural Rules, the
relevant argument of the Respondent cannot be considered for lack of evidence.
47.
In conclusion, the Claimant is entitled to receive from the Respondent the amount of EUR
155,893.07.
48.
In addition, taking into account the specific request of the Claimant as well as the wellestablished jurisprudence of the DRC with regard to the interests, the Claimant is entitled to
receive interest at the rate of 5% p.a. as follows:
- on the amount of EUR 18,340.36 as from 30 August 2018 until the date of effective payment;
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TMS 6785
- on the amount of EUR 45,850.91 as from 30 August 2018 until the date of effective payment;
- on the amount of EUR 45,850.91 as from 30 August 2019 until the date of effective payment;
- on the amount of EUR 45,850.91 as from 30 August 2020 until de date of effective payment.
49.
Consequently, the claim of the Claimant is partially accepted.
50.
Any further claim of the Claimant is rejected.
51.
No procedural costs are levied (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
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TMS 6785
III. DECISION OF THE SINGLE JUDGE OF THE SUB-COMMITTEE OF THE
DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Atlético Clube Lagartense, is partially accepted.
2.
The Respondent, Atlético Madrid, shall pay to the Claimant EUR 155,893.07 as solidarity contribution,
plus 5% interest per annum as follows:
- on the amount of EUR 18,340.36 as from 30 August 2018 until the date of effective payment;
- on the amount of EUR 45,850.91 as from 30 August 2018 until the date of effective payment;
- on the amount of EUR 45,850.91 as from 30 August 2019 until the date of effective payment; and
- on the amount of EUR 45,850.91 as from 30 August 2020 until de date of effective payment.
3.
Any further claims of the Claimant are 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:
7.
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 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.
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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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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