Solidarity Contribution
Texto da decisão
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REF TMS 8028
Decision of the
Dispute Resolution Chamber
passed on 5 May 2022
regarding solidarity contribution for the transfer of the player FABIO ROBERTO GOMES
NETTO
BY:
Johan Van Gaalen (South Africa), member of the Dispute Resolution Chamber of
the Football Tribunal
CLAIMANT:
GREMIO ESPORTIVO OSASCO LTDA - SP, Brazil
RESPONDENT:
ALBIREX NIIGATA, Japan
Page 2 of 10
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REF TMS 8028
I. FACTS OF THE CASE
Player:
FABIO ROBERTO GOMES NETTO
Date of birth:
25 May 1997
Player passport:
issued by the Confederação Brasileira de Futebol (CBF) on 13 February 2020 –
relevant abstract below
Season Birthday Club
2016
19th
Gremio Esportivo Osasco
Ltda - SP
th
2017
20
Gremio Esportivo Osasco
Ltda - SP
Registration Dates
11/05/16 – 31/12/16
Status
Professional (permanent)
01/01/17 – 31/01/17
Professional (permanent)
Sporting season:
January to December (Brazil)
First transfer:
14 February 2020, from Oeste – SP (Brazil) to Albirex Niigata (Japan) as a
professional (on loan)
Relevant conditions:
Art. 3 of the loan agreement: loan fee of USD 1,000,000 “without any discount
whatsoever” payable as follows:
a. USD 500,000 within 10 days of signature of the loan agreement (i.e. 10 days
after 26 December 2019); and
b. USD 500,000 by 1 February 2021
Art. 4.7 of the agreement:
“The Parties herein agree that the transfer fee herein set out in the present
Agreement shall be paid by ALBIREX to OESTE without any discount whatsoever.
4.7.1. As such, ALBIREX inter alia shall be liable to pay any eventual amount
due as solidarity contribution or training compensation eventually claimed
by third clubs, exempting OESTE of any obligation.”
Art. 6.3 of the agreement:
“In case OESTE agrees with the transfer of the PLAYER or in the event of a transfer
from OESTE to clubs until 28 February 2022, it is agreed that ALBIREX will be entitled
to receive a compensation equivalent to 20% of the net value paid by the other club
to OESTE as transfer fee. OESTE shall then pay ALBIREX within 5 business days as
from the receipt of the transfer fee by OESTE (…)
Page 3 of 10
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REF TMS 8028
6.3.1. For purposes of clarification of clause 6.3 above, ‘net value’ means
the gross amount actually paid by other sports entity to OESTE, less taxes
levied on the operation, possible solidarity mechanism and/or any other
type of compensation provided for in FIFA’s regulations, as well as any fees
paid to intermediaries of the operation, provided that they are limited to
10% of the value of the operation.”
End of first transfer:
9 November 2020, from Albirex Niigata (Japan) to Oeste – SP (Brazil), following the
unilateral termination of the loan and the player’s contract by Albirex Niigata
Second transfer:
15 March 2021, from Oeste – SP (Brazil) to New York Red Bulls (USA) as a
professional (on loan)
Relevant conditions:
Fixed loan fee of USD 200,000 payable by 28 February 2020 + USD 200,000 payable
by 15 September 2021 if loan extended
Claimant club:
Gremio Esportivo Osasco Ltda – SP (Brazil)
Respondent club:
Alibrex Niigata (Japan)
Claim and Response:
1.
On 21 October 2020, the Respondent unilaterally terminated the contract of the player invoking gross
misconduct, and additionally terminated the loan agreement it had entered with Oeste – SP.
2.
On 16 March 2021, the Claimant requested 7.2877% of any solidarity contribution generated by the
loan of the player from Oeste – SP to the Respondent, as well as 7.2877% of any solidarity
contribution generated the payment of the sell-on fee by Oeste – SP to the Respondent in the context
of the loan of the player from Oeste – SP to New York Red Bulls. The Claimant also requested any
applicable interest at a 5% p.a. rate.
3.
The Respondent did not reply to the claim.
4.
On 12 October 2021, the Player’s Status Chamber of the FIFA Football Tribunal (PSC) condemned the
Respondent inter alia to pay USD 141,739 to the player’s former club, Oeste – SP.
5.
In the grounds of the aforesaid decision which were notified to the parties on 17 December 2021,
the PSC concluded the following:
a. “A loan agreement and an employment contract are two independent contracts which do
not have the same object. In this respect, the Single Judge stated, on the one hand, a loan
agreement is usually concluded between two clubs and generally pertains mainly to the
financial and administrative aspects of the temporary transfer of a player and that an
employment contract, on the other hand, is usually concluded between a club and a player
Page 4 of 10
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{$3Xe1jOQdi1es++oQ/OpaZqOoPvlANsEVZwPKnujsLwLXDwJN3Qo8RkOokvX6sXhv8rYEh8//m+gUetsndUM3kGOIoDmtIcEWVWiSU6XgZB1herRpWW0FgdDX2xltvDnEedgSx09mLbZqJFBO70ZW6gb6/oKaMNrQz2YnQ0I+cd4/l4akwvzvklilOjezktDWKg1rCU09CWlYOwWJyASghIseRmn0f90el+xWAsnLs3sOKauRKs/VwpZZWXwme4aumuEkZBpT0WJ3vs/tESRjn2oEKRahA8nfyRpGnJEjYQc=$}
REF TMS 8028
b.
c.
d.
e.
6.
and generally provides for the employment-related obligations of each party“ (cf. III. 34 of
the PSC decision);
“The loan agreement was prematurely terminated, and that the player was re-registered
with the Claimant during November 2020 and that following this, the Claimant was loaned
to the Major League Soccer (MLS) club, New York Red Bulls, as from 1 January 2021 until 30
June 2021. It is also uncontested that, the loan of the player was extended with the MLS
until 31 December 2021.” (cf. III. 35 of the PSC decision);
The Respondent had only paid the first instalment of USD 500,000 to Oeste – SP;
“The Claimant had signed a subsequent loan agreement as well as an extension for the
temporary transfer of the player to the New York Red Bulls for the period 1 January – 31
December 2021. As the player continued to render his services to the Claimant as from 1
November 2020, the non-amortized loan fee for the period between 1 November 2020 and
31 December 2022 amounts to USD 521,739 (USD 1,000,000 / 23 x 12). In the overlapping
period until 31 December 2022, the Claimant received a total amount of USD 380,000 from
the New York Red Bulls.” (cf. III. 42 of the PSC decision);
“Consequently, on account of all of the above-mentioned considerations and the
specificities of the case at hand, the Single Judge decided that the Respondent must pay the
amount of USD 141,739 to the Claimant.” (cf. III. 43 of the PSC decision);
The PSD decision was not appealed and is therefore considered final and binding.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): January 2020 edition
Procedural Rules Governing the Football Tribunal (Procedural Rules): October 2021
edition
Jurisdiction:
yes, uncontested.
Admissible:
yes, uncontested.
Decision:
1.
The Claimant requested the payment of any due solidarity contribution generated by the loan fee
paid by the Respondent to Oeste – SP, as well as the sell-on fee that the Respondent received from
Oeste – SP for the subsequent loan of the player to New York Red Bulls.
2.
The Respondent did not reply to the claim. Therefore, the allegations of the Claimant remain
uncontested.
3.
On 14 February 2020, the player was transferred from Oeste - SP to the Respondent, and the clubs
inter alia agreed that the Respondent shall pay Oeste – SP:
Page 5 of 10
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{$lrmFqdc1KIUkJAjctP+gNwoRACOkK9mUsa60+p33AxlltXpCF7yaQxNg4hN7RSbCc1plzzsvXP24IiCtMv6oXP8LZ76z9zmvxETBXsO1qXAF411TeLAOQoIxTxjefH0iX8wgK39YvW6Fz4nDpMU2E6eF8gG5eS29LzeXp0DZBfynSILfeGyVeV6x5hH+Y0UtV4dC2dNwxURV/xD2gr8dRR+XWMRooFNwCOwX4ioKGtf5QXYIrVmBE3zjkRT0Jj+qkp5r6BMYwLU7QSf608veF7U78OW+yQSXwLNCqex7U6s=$}
REF TMS 8028
a. USD 1,000,000 in two equal instalments of USD 500,000 payable by 5 January 2020 and 1
February 2021 respectively; and
b. Oeste – SP would pay to the Respondent 20% of any net amount it would receive in case
of future transfer of the player which may happen on or before 28 February 2022.
4.
The Respondent unilaterally terminated the loan agreement on 21 October 2021, and the player was
subsequently loaned by Oeste – SP to New York Red Bulls on 15 March 2021.
5.
As determined in the unchallenged PSC decision, the Respondent effectively paid to Oeste – SP a loan
fee of a total value of USD 641,739, corresponding of:
a. The first agreed instalment of USD 500,000 which fell due on 5 January 2020; and
b. USD 141,739 as the non-amortized second instalment of the loan fee minus the loan fee
received by Oeste – SP for the subsequent loan of the player to New York Red Bulls.
6.
Since the PSC decision does not specify at which date the amount of USD 141,739 fell due, it is
determined that said amount fell due on the date the second instalment of the loan fee contractually
fell due, i.e. 1 February 2021.
7.
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 seasons of his 12th and 23rd birthdays.
8.
In addition, 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 the player’s
career history as provided in the player passport.
9.
It remained undisputed that the player was registered with the Claimant, as indicated in the player
passport issued by CBF, as from 11 May 2016 until 31 January 2017, i.e. during:
a. 235 days of the season of his 19th birthday; and
b. 31 days of the season of his 20th birthday.
10.
As such, it established that, in line with art. 1 par. 1 of Annexe 5 RSTP, the Claimant is entitled to
receive 7.29% of any solidarity contribution generated by a transfer of the player, corresponding to:
a. 6.44% of any due solidarity contribution for the training education provided to the player
during the 235 days of the season of the player’s 19th birthday; and
b. 0.85% of any due solidarity contribution for the training education provided to the player
during the 31 days of the season of the player’s 20th birthday.
Page 6 of 10
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REF TMS 8028
11.
Art. 1 par. 1 of Annexe 5 RSTP foresees that 5% of any compensation paid by the new club to the
former club shall be deducted and distributed by the new club a solidarity contribution.
12.
As indicated above, the Respondent de facto paid a loan fee of USD 641,739 to Oeste - SP, in two
installments as follows:
a. USD 500,000 payable by 5 January 2020; and
b. USD 141,739 payable by 1 February 2021.
13.
Therefore, the Respondent shall deduct 5% of the above loan fee as solidarity contribution, and
distribute it accordingly between the training clubs of the player
14.
In accordance with art. 2 par. 1 of Annexe 5 RSTP, the new club of a player shall pay the solidarity
contribution to the training club(s) no later than 30 days after the player’s registration or, in case of
contingent payments, 30 days after the date of such payments.
15.
Thus, the Respondent had 30 days to pay any solidarity generated by the payment of the above due
instalments of loan fee to the training clubs:
a. As from 5 January 2020 until 4 February 2020 to pay any due solidarity contribution
generated by the first instalment; and
b. As from 1 February 2021 until 3 March 2021 to pay any due solidarity contribution
generated by the second instalment.
16.
The Claimant is entitled to receive 7.29% of any due solidarity contribution.
17.
It is uncontested that, to date, the Respondent did not pay any due solidarity contribution
whatsoever to the Claimant in relation to the loan fee.
18.
Therefore, the Claimant shall be entitled to solidarity contribution of USD 2,339.14, corresponding
to:
a. USD 1,822.50 as 7.29% of the solidarity contribution generated by the first instalment; and
b. USD 516.64 as 7.29% of the solidarity contribution generated by the second instalment.
19.
As per the practice of the DRC, interest on solidarity contribution is payable as from the 31 days after
the solidarity became due, and is calculated at a rate of 5% per annum.
20.
Therefore, it is established that the Respondent shall pay to the Claimant 5% interest per annum as
follows:
a. On the amount of USD 1,822.50 calculated as from the date said payment became overdue
(i.e. 5 February 2020), until effective payment; and
b. On the amount of USD 516.64 calculated as from the date said payment became overdue
(i.e. 4 March 2021), until effective payment.
Page 7 of 10
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REF TMS 8028
21.
In continuation, the Claimant requested 7.29% of any due solidarity contribution that would have
been generated by the potential payment of the interest on future transfer of the player by Oeste –
SP to the Respondent, as per art. 6.3 of the loan agreement signed by Oeste – SP and the Respondent.
22.
In case of interest on future transfer, the sum paid by the party receiving the “future” transfer fee to
the party which shall receive the interest on future sale may be considered as part of any
compensation in the sense of art. 1 par. 1 of Annexe 5 RSTP. According to said article, 5% of any such
compensation shall be deducted by the new club and distributed to the player’s training clubs
accordingly.
23.
In the present matter, any interest on the future transfer of the player from Oeste – SP to a third club
shall have been paid by Oeste – SP to the Respondent. As such, it is considered that in casu, since the
interest on future sale is to be paid by Oeste – SP to the Respondent, then any potential solidarity
contribution that would be generated shall be in fact paid by the club paying such interest on future
transfer, i.e. by Oeste – SP, and not by the Respondent.
24.
As such, the request of the Claimant regarding the payment by the Respondent of 7.29% of any due
solidarity contribution that would have been generated by the potential payment of the interest on
future transfer of the player by Oeste – SP to the Respondent is rejected.
25.
Consequently, the claim of the Claimant is partially accepted.
26.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for disputes between
clubs regarding the payment of training rewards.
27.
The Claimant effectively claimed USD 2,339.14.
28.
Thus, the amount claimed by the Claimant corresponds to an amount lower than USD 49,999.
Therefore, procedural costs levied in this respect are fixed at USD 5,000 (cf. art. 2 of Annexe 1 to the
Procedural Rules).
29.
According to art. 25 par. 5 of the Procedural Rules, the chamber will decide the amount that each
party is due to pay, in consideration of the parties’ degree of success and their 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.
30.
In view the specific circumstances of the case, procedural costs shall be set at USD 1,000.
31.
In view of the outcome of the claim, said costs shall be borne by the Respondent.
32.
Art. 24bis is applicable.
Page 8 of 10
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REF TMS 8028
III.
DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, Gremio Esportivo Osasco Ltda - SP, is partially accepted.
2.
The Respondent, Alibrex Niigata, shall pay to the Claimant solidarity contribution of USD 2,339.14,
plus interest as follows:
a. 5% interest p.a. on USD 1,822.50 as from 5 February 2020 until effective payment; and
b. 5% interest p.a. on USD 516.64 as from 4 March 2021 until effective payment.
▪
3.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
4.
Any further claim of the Claimant is rejected.
5.
Pursuant to article 24bis 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 by the
Respondent, 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.
7. The final costs of the proceedings in the amount of USD 1,000 are to be paid by the Respondent to FIFA
with reference to case no. TMS 8028 (cf. note relating to the payment of the procedural costs below).
For the of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 8028
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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