Solidarity Contribution
Texto da decisão
REF TMS 11867
Decision of the
Dispute Resolution Chamber
passed on 14 September2023
regarding solidarity contribution for the transfer of the
player Anders Laustrup DREYER
BY:
Mr. Mario Flores Chemor (Mexico), Single Judge of the Dispute
Resolution Chamber of the Football Tribunal
CLAIMANT:
Esbjerg (professional), Denmark
RESPONDENT:
FC Midtjylland (professional), Denmark
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REF TMS 11867
I. FACTS OF THE CASE
Player:
ANDERS LAUSTRUP DREYER
Date of birth:
2 May 1998
Player passport (s): issued by the Danish Football Association (DBU):
Season Birthday Club(s)
2010
2011
2012
2013
2014
2015
2016
2017
th
12
Registration dates
Status
Bramming Boldklub
01/01/10
04/03/10
Amateur
Ribe Boldklub
05/03/10
31/12/10
Amateur
th
Ribe Boldklub
01/01/11
31/12/11
Amateur
th
Ribe Boldklub
01/01/12
05/05/12
Amateur
13
14
Esbjerg fB
06/05/12
31/12/12
Amateur
th
Esbjerg fB
01/01/13
31/12/13
Amateur
th
Esbjerg fB
01/01/14
31/12/14
Amateur
th
Esbjerg fB
01/01/15
31/12/15
Amateur
th
Esbjerg fB
01/01/16
31/12/16
Professional
th
Esbjerg fB
01/01/17
31/12/17
Professional
th
15
16
17
18
19
2018
20
Esbjerg fB
01/01/18
08/08/18
Professional
2020
22nd
FC Midtjylland
05/01/20
31/12/20
Professional
2021
rd
FC Midtjylland
01/01/21
26/08/21
Professional
23
Date of transfer 1 (permanent):
30 August 2021, from FC Midtjylland (professional) (Denmark)
to FK RUBIN (Russia) (hereinafter
Financial conditions:
EUR 6,500,000 as follows:
-
EUR 2,000,000 due on 1st October 2021;
-
EUR 2,000,000 due on 1st October 2022; and
-
EUR 2,500,000 due on 1st October 2023.
Contingent payments of up to EUR 500,000 as follows:
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REF TMS 11867
-
EUR 250,000 bonus for each time FK RUBIN reaches Conference
League Group Stage with player participating in at least 50% of the
league matches that led to the qualifying; and
-
EUR 500,000 bonus for each time FK RUBIN reaches Champions /
Europa League Group Stage with player participating in at least 50%
of the league matches that led to the qualifying.
Sell-on:
-
20% of the profit of a subsequent transfer of the player.
Date of transfer 2 (loan):
25 March 2022, from Rubin to FCM
Financial conditions:
Free of payment and based on the Temporary rules addressing the
exceptional situation deriving from the war in Ukraine in accordance with
Annexe 7 of the Regulations on the Status and Transfer of Players
(
RSTP ).
Date of transfer 3 (permanent):
14 July 2022, from Rubin to FCM
Financial conditions:
EUR 700,000
.
Termination agreement:
On 6 July 2022, Rubin and FCM agreed on the
AGREEMENT
of the International Transfer Agreement of 26 August 2021
which
determined that:
-
Art. 2,
, Rubin has paid the first instalment of the
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REF TMS 11867
2021 Transfer Agreement, but due to the current political situation in
Russia, the Parties anticipate that Rubin will be unable to pay the
contingent sums which may fall due to FCM in accordance with the terms
-
Art. 3,
be transferred back to FCM from FC Rubin for an agreed transfer fee of
-
Art. 4,
upon the Player becoming re-registered with FCM on a permanent basis
in accordance with the terms of the 2022
-
.
Art. 6,
2021 Transfer Agreement
neither party shall have any obligation to
the other party thereunder, including that no payment shall be due to
FCM from FC Rubin. For the sake of clarity, the Parties is [sic] declaring
that the transfer fee
is reducing to EUR 2,000,000 (two million) and is
already paid by the FC Rubin. FCM hereby waives its entitlement to any
and all of the remaining instalments of the agreed transfer fee to be paid
by Rubin to FCM
, that being the sum of EUR 4,500,000 (four million
five hundred thousand euros)
Claimant club:
Esbjerg (professional) (Denmark)
Respondent club: FC Midtjylland (professional), Denmark
Claim and Response:
1.
On 21 November 2022, the Claimant lodged a claim against the Respondent for the
solidarity contribution in connection with the transfer of the player from Rubin to the
Respondent.
2.
The Claimant requested for the payment of 54.30% of the due solidarity contribution
plus 5% interest p.a. as of the due date.
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REF TMS 11867
3.
The Claimant filed the present claim with the purpose of receiving EUR 140,772.75 of
solidarity contribution over the second and third instalments (hereinafter referred to as
of the August 2021 transfer agreement
and the July 2022 transfer agreement (hereinafter referred to as
4.
The Claimant is of the opinion that, considering the subsequent transfer agreements
between Rubin and the Respondent, as well as the termination agreement, that the
compensation for the transfer of the player from Rubin to the Respondent has the
economic value of the unpaid fee of the first transfer agreement plus the fee of the new
transfer agreement, i.e. EUR 5,185,000 according to its calculations.
5.
The Claimant referred to art. 1 of Annexe 5 RSTP and to the jurisprudence of the Dispute
Resolution Chamber (hereinafter referred to as
mentioning that any
compensation paid within the scope of the transfer of a player is subject to solidarity
contribution, regardless of whether it is described as part of the transfer fee or not.
6.
On 23 January 2023, the Respondent rejected the claim.
7.
The Respondent stated that it originally agreed on transferring the player to Rubin under
the conditions of the first transfer agreement.
8.
However, due to the exceptional circumstances of Annexe 7 RTSP, the Respondent
stated that Rubin was unable to process the payment of the unpaid fee. Moreover, the
player was interested in returning to the Respondent.
9.
In light of the above, the Respondent argued it agreed with Rubin on the termination of
the first transfer agreement and on the celebration of the new transfer agreement.
10.
The Respondent reasoned it did so for the purpose of: i. allowing the player to continue
with his professional career; ii. being able to transfer him to another club to recuperate
the unpaid fee; and iii. freeing Rubin from an obligation with which it would not be able
to comply.
11.
The Respondent argued it offered to pay to the Claimant solidarity contribution over the
EUR 700,000 fee of the new transfer agreement, but that the latter rejected to receive it.
12.
The Respondent referred to art. 2 of Annexe 5 RSTP to state that the new club is liable
to pay solidarity contribution regarding the compensation paid for the transfer of the
player. Consequently, the amount of solidarity contribution due to the Claimant would
be of EUR 19,005.48, based on the EUR 700,000 transfer fee paid by the Respondent to
Rubin under the new transfer agreement.
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13.
In conclusion, the Respondent stated that Rubin is the new club liable to pay solidarity
contribution regarding the first transfer agreement as it was the latter receiving the
player then.
14.
On 30 January 2023, the Claimant argued the termination of the first transfer agreement
and the conclusion of the new transfer agreement were executed simultaneously, which
should demonstrate correlation between these operations.
15.
The Claimant is of the opinion that the Respondent waived the unpaid fee under the
condition that the player would be permanently transferred back from Rubin for the
payment of EUR 700,000, and that, because of that the Respondent should be held
responsible for paying solidarity contribution over the unpaid fee of the first transfer
agreement and the new transfer agreement.
16.
On 10 July 2023, the FIFA administration asked the Respondent to clarify if it paid to the
Claimant solidarity contribution in the amount of EUR 19,005.48.
17.
On 13 July 2023, the Respondent provided documents allegedly representing the
, approximately EUR 19,000 then.
18.
On 24 July 2023, the Claimant confirmed it received from the Respondent the amount of
EUR 19,005 back in August 2022, and highlighted it understood this was only a part of
the solidarity contribution to be paid by the Respondent.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): July 2022
edition.
Procedural Rules Governing the Football Tribunal (Procedural Rules):
March 2023 edition.
Jurisdiction:
Yes, uncontested
Admissible:
Yes, uncontested
Decision:
1.
The claim is based in the transfer of the player from Rubin to the Respondent and on
the recognition of solidarity contribution being applicable over the unpaid fee of the first
transfer agreement and on the amount agreed for the new transfer agreement.
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2.
The Claimant requested for the payment of 54.30% of the due solidarity contribution
plus 5% interest p.a. as of the due date.
3.
In accordance with the uncontested registration history of the player, he was trained by
the Claimant for:
a. 240 days on his 14th birthday, between 6 May and 31 December 2012;
b. the full year of his 15th birthday, in 2013;
c. the full year of his 16th birthday, in 2014;
d. the full year of his 17th birthday, in 2015;
e. the full year of his 18th birthday, in 2016;
f.
the full year of his 19th birthday, in 2017; and
g. 217 days on his 20th birthday, between 1 January and 5 August 2018.
4.
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 season of his 12th and 23rd birthdays.
5.
Given the registration period of the player with the Claimant, the latter is entitled to
receive 54.30% of the due solidarity contribution as follows:
a. 3.30% of the due solidarity contribution for the 240 days on
14th
birthday;
b. 5% of the due solidarity contribution for the full year
15th
birthday;
c. 10 % of the due solidarity contribution for the full year
16th
birthday;
th
d.
birthday;
th
e.
birthday;
th
f.
birthday and
g. 6% of the due solidarity contribution for the 217 days on
20th
birthday.
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6.
The Claimant argued that the compensation to be considered for the calculation of its
solidarity contribution entitlement should be the unpaid fee of the first transfer
agreement, in which the Respondent is the club releasing the player, and the amount
agreed for the new transfer agreement, in which the Respondent is the club receiving
the player.
7.
Art. 2 par. 2 of Annexe 5 RSTP foresees that it is the responsibility of the new club to
calculate the amount of the solidarity contribution and to distribute it in accordance with
Only for this reason, the
the context of the first transfer of the Player. In fact, the Claimant acknowledges that it
agreement, through the filing of TMS claim nr. 11861
8.
In any event, it is to be reiterated that it is undisputed that the second and third
instalments of the first transfer agreement were never paid. Thus, evidently no solidarity
contribution could have been generated. The Single Judge points out that the reason
behind the waiver of the second and third instalments seem legitimate and the Claimant
did not argue, let alone prove that such waiver was somehow an attempt to circumvent
the payment of solidarity contribution.
9.
In accordance with the financial conditions of the new transfer agreement, the
Respondent was to pay to Rubin the amount of EUR 700,000. The total solidarity
contribution over this amount is of EUR 35,000, which is equivalent to the 5% of the
training entitlement multiplied by the EUR 700,000 transfer fee.
10.
, EUR 35,000, equals
EUR 19,005.
11.
The Claimant confirmed having received from the Respondent in August 2022, before
the filing of the present claim, EUR 19,005.
12.
Bearing the above in mind, one can conclude that by agreeing on a given amount, i.e.
EUR 19,005, and by confirming that the said amount has been duly paid prior to the filing
of the present claim, Claimant and Respondent appears to have settled the solidarity
contribution due to the Claimant.
13.
Consequently, the claim of the Claimant cannot be accepted.
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14.
Based on the above, the claim of the Claimant, Esbjerg (professional), is rejected.
15.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for
disputes between clubs regarding the payment of training rewards.
16.
The Claimant claimed an amount of EUR 140,772.75 of solidarity contribution.
17.
Thus, the amount claimed by the Claimant corresponds to an amount higher than USD
100,000 and lower than USD 149,999.99. Therefore, procedural costs levied in this
respect are fixed at a maximum of USD 15,000 (cf. art. 2 of Annexe 1 of the Procedural
Rules).
18.
According to art. 25 par. 5 of the Procedural Rules, the chamber will decide the amount
conduct during the procedure, as well as any advance of costs paid. In exceptional
circumstances, the chamber may order that FIFA assumes all procedural costs.
19.
In view the specific circumstances of the case, procedural costs shall be set at USD
15,000.
20.
In view of the outcome of the claim and the conduct of the parties, said costs shall be
borne by the Claimant.
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III. DECISION
1. The claim of the Claimant, Esbjerg (professional), is rejected.
2. The final costs of the proceedings in the amount of USD 15,000 are to be paid by the Claimant
to FIFA reference to case no. TMS 11867 (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 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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