Solidarity Contribution
Texto da decisão
REF TMS 12286
Decision of the
Dispute Resolution Chamber
passed on 17 May 2023
regarding solidarity contribution for the transfer the player Jose Artur DE
LIMA JUNIOR
COMPOSITION:
Frans de Weger (The Netherlands), Chairperson
Mario Flores Chemor (Mexico), member
Johan van Gaalen (South Africa), member
CLAIMANT:
Bahia
BA, Brazil
RESPONDENT:
Houston Dynamo, USA
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REF TMS 12286
I. FACTS OF THE CASE
Player:
Jose Artur DE LIMA JUNIOR
Date of birth:
11 March 1996
Player passport:
issued by the Brazilian Football Confederation (CBF) on 29 May 2018:
Year
Season
2008 to
12/14
Status
Basis
Country
2010
2010 to
14/15
Amateur
Def
Brazil
2011
Period
Club
From 01.01.2008 to
No record
03.10.2010
found
From 04.10.2010 to
Atlantico
24.03.20111
Esporte
Clube/BA
2011 to
15/15
Amateur
Def
Brazil
2011
2012 to
15/16
2012
2012 to
16/16
Amateur
Def
Brazil
2012
2012 to
16/16
16/16
Amateur
Def
Brazil
2013
2013 to
16/17
Professional
Def
Brazil
17/17
Professional
Loan
Brazil
17/18
Professional
Def
Brazil
18/19
Professional
Def
Brazil
19/19
19/19
Professional
Def
Brazil
2015
2015 to
19/20
Professional
Loan
Brazil
2016
2016 to
20/20
Professional
Def
Brazil
2016
2016 to
2017
16.07.2012
found
From 17.07.2012 to
Bahia/BA
From 23.08.2012 to
No record
23.08.2012
found
From 24.08.2012 to
Ypiranga/BA
From 01.03.2013 to
Bahia/BA
From 20.08.2013 to
Galicia/BA
From 01.12.2013 to
Bahia/BA
From 01.01.2015 to
Bahia/BA
02.07.2015
2015
2015 to
No record
01.01.2015
2015
2015 to
From 01.01.2012 to
30.11.2013
2015
2015 to
SP
19.08.2013
2013
2013 to
31.12.2011
28.02.2013
2013
2013 to
Palmeirinha/
22.08.2012
2012
2012 to
From 25.03.2011 to
20/20
Professional
Def
Brazil
From 03.07.2015 to
No record
08.07.2015
found
From 09.07.2015 to
Ge
31.07.2015
Juventus/SC
From 01.08.2015 to
Sao
31.07.2016
Paulo/SP
From 31.07.2016 to
Ge
01.08.2016
Juventus/SC
From 01.08.2016 to
Sao
31.01.2017
Paulo/SP
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REF TMS 12286
2017 to
20/21
Professional
Loan
USA
2017
2017 to
21/21
Professional
Def
Brazil
2017
2018 to
21/21
2018
2018 to
21/26
Professional
Def
2023
USA
From 01.02.2017 to
Columbus
30.12.2017
Crew
From 31.12.2017 to
Sao
31.12.2017
Paulo/SP
From 01.01.2018 to
No record
15.01.2018
found
From 16.01.2018 to
Columbus
16.01.2013
Crew
Sporting season: From January to December
Date of transfer: 11 November 2022, from Columbus Crew (USA) to Houston Dynamo (USA)
as professional:
Financial conditions of the transfer:
According to the information provided by the Major League Soccer (MLS),
Columbus Crew (USA) and Houston Dynamo agreed upon the transfer of
the player in exchange of USD 300,000 of General Allocation Money (GAM).
Claimant club:
Bahia
BA (Brazil)
Respondent club:
Houston Dynamo (USA)
Claim and Response:
1.
On 03 February 2023, the Claimant lodged a claim against the Respondent requesting
the payment of 1.116% of the total transfer amount over any compensation agreed upon
and/or paid to the Former Club and any future payments, such as, but not limited to, bonus
payments or sell-on fees agreements, plus 5% p.a. interest as of the due dates until the date
of effective payment
2.
On 08 February 2023, the Major League Soccer (MLS) disclosed the conditions agreed
between Columbus Crew (Former club) and the Respondent for the transfer of the
player. According to the MLS, (i) the player was re-assigned from Columbus Crew to the
Respondent on 11 November 2022 without signing a transfer agreement; (ii) the abovementioned clubs agreed on the transfer of the player in exchange for USD 300,000 as
General Allocation Money (GAM); (iii) no compensation payment was agreed upon for
the transfer of the player and the Claimant is not entitled to solidarity contribution.
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REF TMS 12286
3.
The Respondent failed to provide its position in the matter at hand.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): October 2022
edition
Procedural Rules Governing the Football Tribunal (Procedural Rules):
November 2022 edition
Jurisdiction:
yes, uncontested.
Admissible:
yes, uncontested.
Proposed Decision:
1.
The Claimant requested the payment of solidarity contribution resulting from the
transfer of the player from Columbus Crew (USA) to the Respondent.
2.
The Respondent did not provide its comments in respect of the present claim.
3.
Art. 1 par. 1 of Annexe 5 RSTP stipulates that if a professional moves during the course
of a contract, 5% of any compensation, not including training compensation paid to his
former club, 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. This solidarity contribution reflects the number
of years (calculated pro rata if less than one year) he was registered with the relevant
club(s) between the years of his 12th and 23rd birthdays.
4.
It is uncontested that in accordance with the player passport issued by the CBF on 29
May 2018, the player was registered with the Claimant as follows:
(i) from 17 July 2012 until 22 August 2012, corresponding to 37 days of the calendar
th
birthday;
(ii) (ii) from 01 March 2013 until 19 August 2023 and from 01 December 2013 until 31
th
birthday;
th
(iii) the entire calendar year of the
birthday; and
(iv) from 01 January 2015 until 02 July 2015, corresponding to 183 days of the calendar
th
birthday.
5.
It is uncontested that the player was transferred from Columbus Crew to the
Respondent on 11 November 2022 in exchange for USD 300,00 as GAM.
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REF TMS 12286
6.
In view of that, the DRC must decide if the amount of USD 300,000 as GAM provided by
the Respondent can be encompassed as compensation in the meaning of the RSTP and,
if so, what it is the amount of solidarity contribution due to the Claimant.
7.
Article 21 and Annexe 5, article 1, of FIFA RSTP, set forth that any compensation paid
within the scope of the transfer of the player, except for training compensation, shall be
subjected to solidarity contribution. Additionally, the FIFA Commentary on the
solidarity contribution is subject to any compensation paid for the transfer of the player,
regardless of whether it is described as part of the transfer fee or not .
8.
According to the DRC and CAS jurisprudence,
cannot be
considered as a narrow interpretation and therefore shall not be strict to the monetary
nature paid for the transfer of the player, but it includes any financial benefit which may
derive from the transfer of a player. This approach has been applied by CAS and the DRC
in cases of entitlement of solidarity contribution triggered by the activation of a buy-out
clause or the swap of players. In fact, the DRC concluded several times that the exchange
of players indirectly implied a financial agreement, i.e. an agreement with a monetary
component, due to the fact that the relevant qualities of the players have an economic
value in the football employment market.
9.
Against the above framework, according to the MLS Rules, the GAM corresponds to an
amount available to MLS clubs annually in addition to its salary budget, which can be
used in several circumstances such as the signing of new players to MLS, the re-assigning
of an existing MLS player, and to off-set loan and transfer fees.
10.
In other words, the increasing of the GAM of an MLS club corresponds to a financial
advantage to such club considering the different possibilities in which the club can spend
this resource. The higher the amount of GAM available to a club, the higher the amount
that can be spent on signing new players or on compensation of loan or transfer fees.
11.
The MLS Rules also foresee that an MLS club may reduce 100% of a loan or transfer fee
using the GAM.
12.
In this respect and according to the strict financial MLS rules on the amount that can be
spent by MLS clubs, it seems that any amount of GAM provided to an MLS club in
exchange of the registration of a player corresponds to a payment of compensation that
can be spend within the parameters established by the MLS Rules.
13.
Bearing in mind that the RSTP clearly establishes the entitlement of solidarity
contribution on any compensation paid within the scope of the transfer of the player,
regardless the nature of the compensation, the amount of GAM provided by the
Respondent shall be encompassed as a transfer compensation and the Claimant is
entitled to solidarity contribution for the transfer of the player.
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14.
Finally, and again given the nature of the GAM as described above, the DRC held that
any other conclusion as regards the GAM would be to the detriment of uniformity,
equality and certainty on football at a global scale because it would enable USA (or
Canadian) clubs forming part of the MLS to have a financial advantage over the rest
15.
Consequently, the amount to be taken into account to calculate the solidarity
contribution due to the Claimant is USD 300,000.
16.
According to art. 1 and 2 of Annexe 5 of the RSTP,
club, i.e. the
Respondent, is ordered to remit the relevant proportion(s) of the 5% solidarity
contribution to the club(s)
17.
It remained undisputed that the Respondent did not pay the solidarity contribution to
the Claimant in relation to the amount agreed for the transfer of the player, i.e. USD
300,000.
18.
According to art. 21 and art. 1 par. 1 of Annexe 5 of the RSTP, 5% of the above
compensation shall be deducted as solidarity contribution.
19.
As per art. 1 par. 1 of Annexe 5 of the RSTP, solidarity contribution for the calendar year
6th to 23rd birthday amounts to 10% of the total solidarity contribution and
it is to be calculated on a pro rata basis if a player is registered for less than a year (cfr.
Art. 1 par. 1 of Annexe 5 of the RSTP).
20.
As established above in point II.4, the Claimant is entitled to receive 21.59% of the due
solidarity contribution, i.e. 1.0795% of the total transfer amount agreed for the transfer
of the player, corresponding to: 10.11% of the 10% solidarity contribution for the 37 days
the 10% solidarity contribution for the 365 d
birthday; and 50.14% of the 10% solidarity contribution for the 183 days of the calendar
.
21.
Based on the above, the Respondent shall pay the Claimant solidarity contribution of
USD 3,237.94.
22.
In addition, the Claimant requested the payment of interests over the claimed amount
at a rate of 5% p.a. as of the due date.
23.
-established
jurisprudence of the DRC with regard to interest, the Claimant is entitled to receive
interest of 5% p.a. over the amount payable as solidarity contribution as of the 31st day
after the date of registration of the player on the permanent basis, i.e. 12 December
2022.
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24.
In view of all the above, the claim of the Claimant is accepted and the Claimant is entitled
to receive USD 3,237.94 as solidarity contribution, plus 5% interest p.a., as from 12
December 2022 until the date of effective payment.
25.
Art. 25 par. 2 of the Procedural Rules stipulates that costs in the maximum amount of
USD 25,000 are levied in connection with proceedings before the DRC of the Football
Tribunal relating to disputes regarding training compensation and the solidarity
mechanism. Costs are to be bor
the proceedings (art. 25 par. 5 of the Procedural Rules).
26.
The amount claimed in the present dispute corresponds to an amount below USD
49,999. Therefore, procedural costs levied in this respect shall not exceed USD 5,000 (cf.
art. 2 of Annexe 1 of the Procedural Rules).
27.
In consideration of the amount claimed, the costs of the proceedings are set at USD
3,000.
28.
In view of the outcome of the claim and the conduct of the parties, said costs shall be
born entirely by the Respondent.
29.
Art. 24 of the RSTP applies.
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III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, Bahia - BA, is accepted.
2. The Respondent, Houston Dynamo, shall pay to the Claimant USD 3,237.94 as solidarity
contribution plus 5% interest p.a. as from 12 December 2022 until the date of effective
payment.
3. Any further claims of the Claimant are rejected.
4. Full payment (including all applicable interest) shall be made to the bank account
indicated in the enclosed Bank Account Registration Form.
5. Pursuant to article 24 of the Regulations on the Status and Transfer of Players if full
payment (including all applicable interest) is not paid within 45 days of notification of
this decision, 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. The maximum duration of the
ban shall be of three entire and consecutive registration periods.
2. The present matter shall be submitted, upon request, to the FIFA Disciplinary
Committee in the event that full payment (including all applicable interest) is still
not paid by the end of the of the three entire and consecutive registration periods.
6. The consequences shall only be enforced at the request of the Claimant in
accordance with article 24 paragraphs 7 and 8 and article 25 of the Regulations on the
Status and Transfer of Players.
7. The final costs of the proceedings in the amount of USD 3,000 are to be paid by the
Respondent to FIFA with reference to case no. TMS 12286 (cf. note relating to the payment
of the procedural costs below).
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
Pursuant to article 57 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 17 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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