Solidarity Contribution
Texto da decisão
REF TMS 11861
Decision of the
Dispute Resolution Chamber
passed on 4 August 2023
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:
FK RUBIN, Russia
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REF TMS 11861
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)
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:
-
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
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REF TMS 11861
-
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 FK RUBIN (Russia) 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 FK RUBIN (Russia) to FCM
Financial conditions:
EUR 700,000
within 5 working days of the satisfaction of the
.
Termination agreement:
On 6 July 2022, FK 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
2021 Transfer Agreement, but due to the current political situation in
Russia, the Parties anticipate that Rubin will be unable to pay the
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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: FK RUBIN (Russia)
Claim and Response:
1.
On 22 November 2022, the Claimant lodged a claim against the Respondent for the
solidarity contribution in connection with the transfer of the player from FCM 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.
3.
The Claimant highlighted that it was approached by the Respondent for the amicable
payment of EUR 176,475 of solidarity contribution in three instalments;
a. EUR 54,707.25 on 1st November 2021;
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b. EUR 54,707.25 on 1st November 2022; and
c. EUR 67,060.50 on 1st November 2023.
4.
Out of the instalments above, the Claimant confirms having received exclusively the first
one.
5.
The Claimant filed the present claim with the purpose of receiving the difference
between the EUR 54,707.25 paid by the Respondent and the EUR 176,475 the Claimant
understands it is entitled to receive. This results in an amount of EUR 121,767.75 of
solidarity contribution over the remaining part of the EUR 6,500,000 fixed transfer fee
6.
The Claimant is aware that in March 2022 the player returned from the Respondent to
FCM on loan, in accordance with Annexe 7 RSTP, without any compensation being paid.
7.
The Claimant also knows that in July 2022, the player was permanently transferred from
the Respondent to FCM for the payment of EUR 700,000.
8.
The Claimant argued that the amount agreed on the abovementioned July 2022 transfer
agreement (hereinafter referred to as
does not correspond
to the real amount of compensation paid for the transfer of the player.
9.
The reasoning of the Claimant is that, simultaneously with the new transfer agreement,
the above-mentioned clubs agreed upon the termination of the August 2021 transfer
agreement (hereinafter referred to as first
, and on the cancellation
of the unpaid fee.
10.
In this respect, the Claimant pointed out that the compensation agreed in the first
transfer agreement is EUR 6,500,000 and solidarity contribution remains due over the
unpaid fee.
11.
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.
12.
On 12 January 2023, the Respondent rejected the claim and argued that no solidarity
contribution is due over the unpaid fee.
13.
The Respondent argued that in March 2022 the employment contract between the latter
and the player was suspended at the initiative of the player in accordance with Annexe
7 RSTP. Consequently, the player was loaned to FCM for a period between then and June
2022.
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14.
Due to the exceptional political situation in Russia in July 2022, the Respondent agreed
to permanently transfer the player to FCM against the payment of EUR 700,000, and to
terminate the first transfer agreement, cancelling the unpaid fee.
15.
The Respondent emphasized that the conditions agreed on the first transfer agreement
were renegotiated because of objective circumstances and that neither the Respondent
nor FC Midtjylland tried to circumvent the payment of solidarity contribution.
16.
The Respondent stated that, considering Annexe 7 RSTP and the fact that it could not
use the services of the player, it discussed with FCM, which, in good faith, agreed to
reduce the amount of the first transfer agreement to EUR 2,000,000 and, consequently,
cancel the unpaid fee.
17.
The Respondent understands that no additional solidarity contribution is due to the
Claimant.
18.
On 30 January 2023, the Claimant argued that the termination of the first transfer
agreement and the new transfer agreement were concluded on the same day, which
should demonstrate correlation between both operations.
19.
The Claimant is of the opinion that FCM waived the unpaid fee under the condition that
the player would be permanently transferred back from the Respondent for the
payment of EUR 700,000.
20.
The Claimant presents documentation to show that the Respondent was not under
economic sanctions on the date agreed for the payment of the second instalment of the
first transfer agreement, and that the Respondent is currently making payments to
European entities.
21.
In this regard, the Claimant requested it should not prevail the
that the amount of the first transfer agreement was renegotiated due to the economic
situation faced by the Respondent in Russia.
22.
In conclusion, the Claimant argued that solidarity contribution shall be calculated based
on the total transfer compensation of the first transfer agreement, regardless of how
the subsequent agreements between the Respondent and FCM may have been drawn
up.
23.
On 9 February 2023, the Respondent reiterated that the amount to be taken into
consideration for the calculation of the solidarity contribution due to the Claimant
should be the one effectively paid to FCM, i.e. the first instalment of the fixed fee of the
first transfer agreement.
24.
to make
payments in 2022, year of the due date of the second instalment of the fixed fee of the
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first transfer agreement, the Respondent stated that the document presented by the
Claimant was issued three months before the signature of the new transfer agreement
and it does not contest
to make payments then.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): August 2021
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 FCM to the Respondent and on the
recognition of solidarity contribution being applicable over the unpaid fee.
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.
The Claimant states that it should be deducted from the abovementioned entitlement
the EUR 54,707.25 amicably paid by the Respondent to the Claimant over the first
instalment of the fixed fee of the first transfer agreement.
4.
On the one hand, the Claimant argued that it should receive solidarity contribution over
the unpaid fee of the first transfer agreement.
5.
On the other hand, the Respondent is of the opinion that the only compensation to be
considered for the calculation of solidarity contribution is the first instalment of the fixed
fee of the first transfer agreement, being the only one actually paid to FCM.
6.
Art. 1 of Annexe 5 RSTP clearly stipulates that solidarity contribution shall be based on
any compensation paid for the transfer of the player.
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REF TMS 11861
7.
In the present matter, it is uncontested that the unpaid fee on the first transfer
agreement was never paid by the Respondent due to the termination of the referred
transfer agreement signed on 6 July 2022.
8.
According to art. 6 of the termination, the parties declared that the amount of transfer
compensation agreed on the first transfer agreement was reduced to the EUR 2,000,000
paid by the Respondent to FCM.
9.
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.
10.
Consequently, the amount to be taken into account to calculate the solidarity
contribution due to the Claimant is the amount renegotiated by the parties and actually
paid for the transfer of the player from FCM to the Respondent, i.e. EUR 2,000,000.
11.
The Claimant acknowledged receipt of the payment of solidarity contribution regarding
the first instalment agreed for the first transfer agreement.
12.
Based on the above, the claim of the Claimant, Esbjerg (professional), is rejected.
13.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for
disputes between clubs regarding the payment of training rewards.
14.
The Claimant claimed an amount of EUR 121,767.75 of solidarity contribution.
15.
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).
16.
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.
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17.
In view the specific circumstances of the case, procedural costs shall be set at USD
15,000.
18.
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 11861 (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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