Solidarity Contribution
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the
Dis pute Res olution Cham ber (DRC)
passed on 29 November 2019,
by Johan v an Gaalen (South Africa),
Single Judge of the sub-committee of the DRC,
on the claim presented by the club,
S ER Cax ias do S ul, Brazil
as Claimant
against the club,
FC PAOK Thes s aloniki, Greece
as Respondent
regarding solidarity contribution in connection with the transfer
of the player Pedro Henrique Konzen Medina
I.
Facts of the cas e
1.
According to the player passport issued by the Confederação Brasileira de Futebol,
the player, Mr Pedro Henrique Konzen Medina (hereinafter: the player), born on
16 June 1990, was registered with the club SER Caxias do Sul (hereinafter: the
Claimant) as from 1 April 2010 until 24 January 2012.
2.
The football seasons in Brazil during the period of time the player was registered
with the Claimant started in January and ended in December of the same calendar
year.
3.
According to the information contained in the Transfer Matching System (TMS), the
French club, Stade Rennais FC, and the Greek club, FC PAOK Thessaloniki
(hereinafter: the Respondent), agreed upon a transfer compensation amounting to
EUR 1,608,750, payable in three instalments as follows:
4.
(i)
EUR 804,375 “upon signing the contract and no later than on 10 February
2017”;
(ii)
EUR 402,188 “no later than on 27 July 2017”;
(iii)
EUR 402,187 “no later than on 27 January 2018”.
Furthermore, the above-mentioned clubs agreed upon conditional payments as
follows:
(i)
EUR 50,000 “each time that the PAOK FC qualifies for the EUROPA
LEAGUE group stage provided the player is still under contract with the
PAOK FC on the date of the sport qualification”;
(ii)
EUR 100,000 “each time that the PAOK FC qualifies for the CHAMPIONS
LEAGUE group stage provided the player is still under contract with the
PAOK FC on the date of the sport qualification”.
5.
In addition, the above-mentioned clubs agreed that “STADE RENNAIS shall receive –
without limits as to time pursuant to this clause – in a share of 20% to be calculated
on net sums receivable by PAOK FC in relation to the departure of the Player from
PAOK FC, this share arising from receipt by PAOK FC of all types of financial
compensation relating to the Player.”
6.
Equally, according to the TMS, the player was registered with the Respondent on
31 January 2017.
7.
On 29 May 2017, the Claimant lodged a claim in front of FIFA, requesting its
proportion of the solidarity contribution in connection with the transfer of the player
from Stade Rennais FC to the Respondent. In particular, the Claimant requested
18.1918% of the 5% of the transfer compensation, plus 5% interest p.a. “as from the
date in which the payments should have been done”.
8.
In its reply dated 27 July 2017, the Respondent argued that it made the payment to
the Claimant in the amount EUR 7,701.50, of which EUR 1,541.32 were “paid on
behalf of the Claimant” to the Greek taxes authorities.
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
2
9.
With regard to the two remaining instalments as agreed upon in the transfer fee,
the Respondent commented that those were not due yet.
10.
In its replica dated 28 August 2017, the Claimant acknowledged the receipt of the
partial payment of EUR 6,116.26, however, it argued that the Respondent is not
entitled to perform any tax deduction on the amount to be paid as solidarity
contribution.
11.
In view of the above, the Claimant requested “the remaining value of the first
instalment of the solidarity contribution […] with the relevant interest as from the
date when the payment should have been done”.
12.
Furthermore, the Claimant requested the solidarity contribution based on the
alleged PAOK FC’s qualification for the Europa League group stage “with the
relevant interest as from the date when the payment should have been done”.
13.
At last, the Claimant requested the solidarity contribution regarding the second
instalment of the transfer fee “with the relevant interest as from the date when the
payment should have been done”.
14.
In its duplica dated 9 November 2017, the Respondent argued that it made the
payment to the Claimant of EUR 7,701.50; an amount which was paid without any
kind of deduction after having been provided with required documents from the
Claimant.
15.
With regard to the conditional payments, the Respondent considered that the
condition set forth in the transfer agreement was not met, i.e. the club was
eliminated before reaching the Europa League group stage 2017/2018.
16.
On 25 October 2019, a proposal in accordance with Article 13 of the Rules Governing
the Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
was sent out by the FIFA Administration.
17.
The proposed sum due by the Respondent amounted EUR 15,401.66, i.e. 18.19% of
the due solidarity contribution. In this regard, the FIFA Administration have taken
due note that a partial payment of EUR 6,116.26 has already been made by the
Respondent, receipt of which has been confirmed by the Claimant in TMS.
18.
On 9 November 2019, the Respondent rejected the proposal made by the FIFA
Administration, since it considered that after having paid the amounts of
EUR 7,701.50 [minus EUR 1,541.32 as taxes deductions] and EUR 7,701.59, the present
dispute is settled.
19.
On 11 November 2019, the Claimant also rejected the proposal made by the
Administration of FIFA, considering said proposal does not reflect the conditional
payments and the sell-on fee amounts.
20.
In its correspondence dated 20 November 2019, the Claimant acknowledged to have
received the solidarity contribution related to the second and third instalment. With
regard to the first instalment, the Claimant argued that it was paid only partially.
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
3
The Claimant reiterated his request for the outstanding payment as well as solidarity
contribution based on sell-on fee amounts.
II.
Cons iderations of the S ingle Judge of the s ub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the DRC (hereinafter also
referred to as: Single Judge) analysed whether he was competent to deal with the
case at hand. Taking into account the wording of art. 21 of the 2019 edition of the
Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (hereinafter: the Procedural Rules), the aforementioned edition
of the Procedural Rules is applicable to the matter at hand.
2.
Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states
that the Dispute Resolution Chamber shall examine its jurisdiction in light of arts 22
to 24 of the Regulations on the Status and Transfer of Players (edition October 2019).
In accordance with art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22
lit. d) of the Regulations on the Status and Transfer of Players, the Single Judge is
competent to decide on the present dispute relating to solidarity mechanism
between clubs belonging to different associations handled through TMS.
3.
Furthermore, the Single Judge analysed which edition of the Regulations on the
Status and Transfer of Players should be applicable as to the substance of the matter.
In this respect, the Single Judge confirmed that in accordance with art. 26 par. 1 and
par. 2 of said Regulations (editions June 2016, January 2018, June 2018, June 2019
and October 2019) and considering that the player was registered with the
Respondent on 31 January 2017, the 2016 edition of the Regulations on the Status
and Transfer of Players (hereinafter: Regulations) is applicable to the matter at hand
as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been
established, the Single Judge entered into the substance of the matter. In this
respect, the Single Judge started by acknowledging all the above-mentioned facts as
well as the arguments and the documentation submitted by the parties. However,
the Single Judge emphasised that in the following considerations he will refer only
to the facts, arguments and documentary evidence, which he considered pertinent
for the assessment of the matter at hand. In particular, the Single Judge recalled that
in accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within
the scope of proceedings pertaining to the application of the Regulations, any
documentation or evidence generated or contained in the Transfer Matching System
(TMS).
5.
The Single Judge started by acknowledging that the Claimant is requesting the
payment of 18.1918% of the 5% of the transfer compensation, plus 5% interest p.a.
as of the due dates, from the Respondent as solidarity contribution in connection
with the international transfer of the professional player, Pedro Henrique Kozen
Medina, from Stade Rennais FC.
6.
Moreover, the Single Judge duly noted that, according to the relevant transfer
agreement dated 27 January 2017, the player was transferred from Stade Rennais FC
to the Respondent for the amount of EUR 1,608,750, payable in three instalments as
follows:
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
4
-
EUR 804,375 “upon signing the contract and no later than on 10 February 2017”;
EUR 402,188 “no later than on 27 July 2017”;
EUR 402,187 “no later than on 27 January 2018”.
7.
Furthermore, the Single Judge noted that above-mentioned clubs agreed upon
conditional payments of EUR 50,000 “each time that the PAOK FC qualifies for the
EUROPA LEAGUE group stage provided the player is still under contract with the
PAOK FC on the date of the sport qualification”
8.
In continuation, the Single Judge observed that at the relevant transfer agreement
stipulated that “STADE RENNAIS shall receive – without limits as to time pursuant to
this clause – in a share of 20% to be calculated on net sums receivable by PAOK FC in
relation to the departure of the Player from PAOK FC, this share arising from receipt
by PAOK FC of all types of financial compensation relating to the Player.”
9.
The Single Judge observed that through the proceedings, the Claimant
acknowledged having received (i) partial payment of the solidarity contribution
based on the first instalment; (ii) full payment of the solidarity contribution based on
the second instalment; (iii) full payment of the solidarity contribution based on the
third instalment.
10.
In this respect, the Single Judge noted that the Claimant requested the outstanding
amount from the first instalment as well as the solidarity contribution based on the
alleged PAOK FC’s qualification for the Europa League group stage.
11.
Equally, the Single Judge took note that the Respondent, for its part, considered that
after having paid the amounts of EUR 7,701.50 – minus EUR 1,541.32 as taxes
deductions “paid on behalf of the Claimant” to the Greek taxes authorities – and
EUR 7,701.59, the present dispute is settled.
12.
With regard to the conditional payments, the Single Judge acknowledged
Respondent’s argument that the condition set forth in the transfer agreement was
not met, i.e. the club was eliminated before reaching the Europa League group stage
2017/2018.
13.
In view of all the above, the Single Judge first of all wished to stress that FIFA’s
deciding bodies are in principle not competent to deal with tax relate disputes, as
the fall outside the scope of the Regulations and Procedural Rules.
14.
Furthermore, the Single Judge emphasised that, as established in art. 21 in
combination with Annexe 5 of the Regulations, 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 to be distributed by the new club as solidarity contribution to the
club(s) involved in the training and education of the player in proportion to the
number of years the player has been registered with the relevant clubs between the
sporting seasons of his 12th and 23rd birthday.
15.
Consequently, the Single Judge decided to reject the Respondent’s argument that
EUR 1,541.32 was deducted for tax purposes and confirmed that said difference
remained due.
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
5
16.
With regard to the conditional payment, the Single Judge analysed the relevant
evidence on file and concluded that the Respondent, indeed, did not qualify to the
group stage of the Europa League. Recalling the wording of the pertinent clause,
the Single Judge concluded that the condition set forth in the transfer agreement
was not met and that therefore, the conditional payment shall not be taken into
account.
17.
Before commencing with the relevant calculation for the matter at hand, the Single
Judge noted that the Claimant, after rejecting the proposal of the FIFA
Administration, amended its claim, additionally requesting the payment of solidarity
contribution based on the sell-on fee.
18.
In this regard, the Single Judge pointed out on the correspondence sent out by the
FIFA Administration, together with the said proposal:
“[…] the Claimant is limited only to accept or reject the proposal, excluding hereby
any possibility to amend its original claim.”
19.
On account of the above, the Single Judge decided to not take into account the
amendment of the claim made by the Claimant after the rejection of the proposal of
the FIFA Administration.
20.
Having said that, the Single Judge started with the relevant calculation of the
solidarity contribution.
21.
First of all, the Single Judge recalled that, according to the player passport issued by
the Confederação Brasileira de Futebol, the Claimant was involved in the training
and education of the player.
22.
On account of the above, the Single Judge decided that, in accordance with art. 21
in combination with Annexe 5 of the Regulations, the Respondent must pay the
relevant proportion of the solidarity contribution to the Claimant.
23.
Having established the above, the Single Judge referred to art. 1 of Annexe 5 of the
Regulations, which provides the figures for the distribution of the solidarity
contribution, according to the period of time during which the player was registered
with the relevant club.
24.
In this respect, the Single Judge recalled that, according to the player passport issued
by the Confederação Brasileira de Futebol, the player, born on 16 June 1990, was
registered with the Claimant as from 1 April 2010 until 24 January 2012.
25.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the Single Judge considered that the Claimant is, thus, entitled to
receive solidarity contribution for the period as from 1 April 2010 until 24 January
2012, i.e. during 275 days of the season of the player’s 20th birthday, during 365 days
of the season of the player’s 21st birthday, during 24 days of the season of the player’s
22nd birthday. In terms of the percentage of the 5% solidarity contribution, the Single
Judge calculated that, on a pro rata basis, this corresponds to 18.19% of the 5% of
the total transfer compensation.
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
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26.
Therefore, the Single Judge concluded that the Claimant is entitled to receive
EUR 15,401.66, plus 5% interest p.a. as of the due dates, as solidarity contribution in
relation to the transfer of the player from Stade Rennais FC to the Respondent.
27.
As a result, considering that the Claimant acknowledged the payment of
EUR 13,861.77, the Single Judge concluded that such amount shall be deducted from
the above-mentioned solidarity contribution.
28.
On account of the above, in accordance with art. 21 in combination with Annexe 5
of the Regulations, the Single Judge decided that the Respondent is liable to pay to
the Claimant the amount of EUR 1,540, plus 5% interest p.a. as of the respective due
date, as solidarity contribution for the player, Pedro Henrique Kozen Medina.
29.
Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination
with art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before
the DRC relating to disputes regarding training compensation and the solidarity
mechanism, costs in the maximum amount of CHF 25,000 are levied. It is further
stipulated that the costs are to be borne in consideration of the parties’ degree of
success in the proceedings and, in accordance with Annexe A of the Procedural Rules,
the costs of the proceedings are to be levied on the basis of the amount in dispute.
30.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is EUR 1,540, related to the claim of the
Claimant. Consequently, the Single Judge concluded that the maximum amount of
costs of the proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the
Procedural Rules).
31.
As a result, considering the degree of success, the Single Judge determined the final
costs of the current proceedings to the amount of CHF 3,000, which shall be paid by
the Respondent to FIFA.
III.
Decision of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, SER Caxias do Sul, is accepted.
2.
The Respondent, FC PAOK Thessaloniki, has to pay to the Claimant, w ithin 30 day s
as from the date of notification of this decision, the amount of EUR 1,540, plus 5%
interest p.a. as of 30 days of the due date of each instalment until the date of
effective payment.
3.
In the event that the aforementioned sum plus interest is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
4.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Single Judge
of the sub-committee of the DRC of every payment received.
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
7
5.
The final costs of the proceedings in the amount of CHF 3,000 are to be paid by the
Respondent to FIFA to the following bank account with reference to case no. TMS
1563:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note related to the publication:
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request of a party within five days of the notification of the motivated decision, to publish
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of the Players’ Status Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to
the CAS directly within 21 days of receipt of notification of this decision and shall contain
all the elements in accordance with point 2 of the directives issued by the CAS. Within
another 10 days following the expiry of the time limit for filing the statement of appeal,
the appellant shall file a brief stating the facts and legal arguments giving rise to the
appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Single Judge of the
sub-committee of the DRC
Emilio García Silvero
Chief Legal & Compliance Officer
Solidarity contribution for the player Pedro Henrique Kozen Medina
(SER Caixas do Sul, Brazil/FC PAOK Thessaloniki, Greece)
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