Solidarity Contribution
Texto da decisão
TMS 7111
Decision of the
Dispute Resolution Chamber
passed on 19 August 2021
regarding solidarity contribution for the transfer of the player Pol Mikel Lirola
Kosok
COMPOSITION:
Clifford J. Hendel (France & USA), Deputy Chairman
Roy Vermeer (Netherlands), member
Pavel Pivovarov (Russia), member
CLAIMANT:
RCD Espanyol de Barcelona, Spain
RESPONDENT:
ACF Fiorentina, Italy
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I. FACTS OF THE CASE
Player:
Pol Mikel Lirola Kosok
Date of birth:
13 August 1997
Player passport 1:
issued by the Royal Spanish Football Federation (RFEF) on 14 August 2020
Season
Birthday
Club(s)
Registration dates
Status
2009-2010
2010-2011
2011-2012
13th
14th
15th
14.08.2009 - 30.06.2010
08.10.2010 - 30.06.2011
13.09.2011 - 30.06.2012
Amateur
Amateur
Amateur
2012-2013
16th
31.08.2012 - 30.06.2013
Amateur
2013-2014
17th
07.08.2013 - 30.06.2014
Amateur
2014-2015
18th
01.08.2014 - 27.08.2014
Amateur
2014-2015
18th
27.08.2014 - 06.04.2015
Professional
2014-2015
18th
Fundacio P. Escola F. Calella
U.D. Vilassar de Mar
R.C.D. Espanyol de Barcelona
SAD
R.C.D. Espanyol de Barcelona
SAD
R.C.D. Espanyol de Barcelona
SAD
R.C.D. Espanyol de Barcelona
SAD
R.C.D. Espanyol de Barcelona
SAD
-
-
-
Sporting season:
1 July to 30 June of the following year (Spain)
Information of the Federazione Italiana Giuoco Calcio (FIGC) (free translation):
- Date of transfer:
According to the information provided by the FIGC, on 1 August 2019, the
Italian clubs Sassuolo Calcio S.R.L. (“the former club”) and ACF Fiorentina (“the
Respondent”) concluded a loan agreement (hereinafter: “the loan agreement”)
for the loan of the player from the former club to the Respondent.
The loan agreement included a purchase option entitled “obbligo di riscatto”
(in English: “purchase obligation”) allowing the Respondent to permanently
acquire the player’s registration from the former club against the payment of
EUR 9,000,000.
In accordance with the loan agreement, the Respondent had the obligation to
convert the loan of the player into a permanent transfer upon fulfilment of the
following condition: “first point of [the Respondent] in the Serie A
Championship – sporting season 2019/2020 achieved after 03/02/2020” (“la
Società di destinazione ha l’obbligo di trasformare la cessione temporanea di
contratto in cessione definitiva al verificarsi delle seguenti condizioni: la primo
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punto della societa’ ACF Fiorentina S.p.A. nel Campionato di serie A – Stagione
Sportiva 2019/2020 – conseguito dopo il giorno 3/02/2020”).
- Financial conditions:
Player passport 2:
Season
2014/2015
2015/2016
2016/2017
2016/2017
2017/2018
2017/2018
2018/2019
2019/2020
2019/2020
2020/2021
2020/2021
2021/2022
(i)
Loan:
EUR 2,000,000 payable on the 1st Sporting Season.
(ii)
Permanent transfer:
EUR 9,000,000, payable as follows:
- EUR 3,000,000 payable on the 1st Sporting Season;
- EUR 3,000,000 payable on the 2nd Sporting Season; and
- EUR 3,000,000 payable on the 3rd Sporting Season.
(iii)
Bonus:
EUR 1,000,000
“Alla 35a “PRESENZA IN GARE UFFICIALI” DEL CALCIATORE. SI
SPECIFICA CHE PER “PRESENZA IN GARE UFFICIALI” SI INTENDONO LE
GARE DELLA 1a SQUADRA DELLA SOCIETA’ AFC FIORENTINA S.p.
A.NELLE COMPETIZIONI UFFICIALI (CON ESCLUSIONE DELLE GARE
AMICHEVOLI)” (free translation in English: “At the 35th appearance of
the player in official matches. Appearance in official matches means
matches of the 1st team of [the Respondent] in official competitions
(friendly matches excluded)”.
issued by the FIGC on 2 July 2021.
Reg. Dates
07.04.2015 - 30.06.2015
01.07.2015 - 30.06.2016
01.07.2016 - 26.07.2016
27.07.2016 - 30.06.2017
01.07.2017 - 30.01.2018
31.01.2018 - 30.06.2018
01.07.2018 - 30.06.2019
01.07.2019 - 01.08.2019
02.08.2019 - 31.08.2020
01.09.2020 - 11.01.2021
12.01.2021 - 30.06.2021
01.07.2021 -
Type of reg.
Permanent
Permanent
Permanent
Loan
Loan
Permanent
Permanent
Permanent
Loan
Permanent
Loan
Permanent
Status
Professional
Professional
Professional
Professional
Professional
Professional
Professional
Professional
Professional
Professional
Unknown
Professional
Claimant club:
RCD Espanyol de Barcelona (Spain)
Respondent club:
ACF Fiorentina (Italy)
Club
Juventus SPA
Juventus SPA
Juventus SPA
Sassuolo Calcio S.R.L.
Sassuolo Calcio S.R.L.
Juventus SPA
Sassuolo Calcio S.R.L.
Sassuolo Calcio S.R.L.
Fiorentina S.P.A.
Fiorentina S.P.A.
ACF Fiorentina S.P.A.
Country
Italy
Italy
Italy
Italy
Italy
Italy
Italy
Italy
Italy
Italy
France
Italy
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Claim and response:
1.
On 2 November 2020, the Claimant lodged a claim for solidarity contribution against the
Respondent requesting payment of the solidarity contribution in connection with the transfer of
the player from the former club to the Respondent on a permanent basis.
2.
The Claimant requested 25.84% of the solidarity contribution, corresponding to “1.30% of any
compensation agreed upon and/or paid to the Former Club or any future payments (such as, but
not limited to, bonus payments, buy option, sell-on clauses)” plus 5% p.a. interest as of the due
date, until the date of effective payment.
3.
The claim is based on the following calculation:
Age
14
15
16
17
Total:
Registered with the
Claimant
13.09.2011 - 30.06.2012
01.07.2012 - 30.06.2013
01.07.2013 - 30.06.2014
01.07.2014 - 06.04.2015
42 months
% of the solidarity
contribution
4.17%
5%
10%
6.67%
25.84%
% of the transfer sum
0.21%
0.25%
0.5%
0.33%
1.30%
4.
The Claimant referred to the June 2020 edition of the Regulations on the Status and Transfer of
Players (RSTP), according to which a training club is entitled to receive (a proportion of) the 5%
solidarity contribution when a professional player is transferred, either on a definitive or loan
basis, between clubs affiliated to the same association, provided that the training club is affiliated
to a different association.
5.
The Claimant added that “presumably in September 2020, [the player] was nationally transferred
from the Former Club to the Respondent on a definitive basis”.
6.
The Claimant deemed that the permanent registration of the player with the Respondent had
triggered its entitlement to receive solidarity contribution.
7.
On 18 November 2020, the case was closed by the FIFA administration on the basis that the
June 2020 edition of the RSTP was not applicable to the matter at hand.
8.
By means of a letter dated 24 November 2020, the Claimant insisted on reopening the case. As
per the Claimant “the transfer of [the player] from [the former club] to [the Respondent] took
place on 1 August 2019 on the basis of a loan agreement but the purchase option was executed
at a later stage being the amounts due after the change in the FIFA RSTP”.
9.
The case was reopened by FIFA in December 2020.
10.
On 4 January 2021, after having been informed by FIFA of the financial conditions stipulated
under the loan agreement concluded between the former club and the Respondent, the
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Claimant reiterated its request for receiving the amount of 1.30% of any compensation agreed
between the involved clubs.
11.
In addition, the Claimant argued that because “the player reached the 35th presence in official
competitions in July 2020” it was also entitled to receive its proportion of the solidarity
contribution on the bonus of EUR 1,000,000.
12.
In support of its allegation, the Claimant provided an extract of the player’s appearances in the
2019/2020 season.
13.
On 26 January 2021, the FIFA administration submitted a proposal to the parties suggesting that
the Respondent should pay to the Claimant the sum of EUR 47,940 as solidarity contribution,
corresponding to 23.97% of the solidarity contribution on the first instalment of EUR 3,000,000
payable by the Respondent for the permanent transfer of the player and on the bonus of EUR
1,000,000, plus 5% interest p.a. as of the due date.
14.
The proposal was accepted by the Claimant and rejected by the Respondent.
15.
On 6 and 15 February 2021, the Respondent rejected the claim of the Claimant arguing the
non-applicability of the 2020 edition of the RSTP to the matter at hand.
16.
The Respondent alleged that on 1 August 2019, when the loan agreement was concluded, the
parties to the contract had chosen “to structure the transfer” as follows: “the Player would be
immediately registered and transferred [to the Respondent] on a temporary basis for the sporting
season 2019/2020 and then registered definitively when [the Respondent] earned the first point
in the Italian Serie A after 3 February 2020”.
17.
The Respondent added that the player’s employment contract was concluded on 1 August 2019
for “a five-year duration, covering the economic conditions for both the period of the loan and
the period in which the Player would be definitely registered with the [Respondent]”.
18.
The Respondent provided a copy of the player’s employment contract of 1 August 2019. As per
the provisions of clause 1 of the player’s employment contract, the said contract was valid for
the period between 2 August 2019 and 30 June 2024.
19.
The Respondent highlighted that the obligation to pay solidarity contribution on national
transfers was only introduced with the June 2020 edition of the RSTP, which was issued “[o]n
25 June 2020 (nearly a year after the Italian clubs had signed the Transfer Agreement)”.
20.
In continuation, the Respondent explained that the purchase option had been triggered on 16
February 2020, when it “earned 3 points in a win against Sampdoria” and that no further
agreement was concluded between the parties because they “had already agreed to the Player’s
definitive transfer on 1 August 2019, including the relevant transfer fees”.
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21.
The Respondent added that “no further employment agreement was necessary or signed since
[the Respondent] and the Player had already signed a 5-year employment contract”.
22.
Referring to the provisions of art. 26 par. 2 of the RSTP, the Respondent emphasised that
disputes regarding the solidarity mechanism are to be assessed “according to the regulations
that were in force when the contract at the centre of the dispute was signed […]”.
23.
The Respondent deemed that in line with the principle of legal certainty, the 2019 edition of the
RSTP, and not the (June) 2020 edition, was to be applied to the matter at hand as the loan
agreement was concluded in August 2019.
24.
As regards the date of registration of the player, the Respondent reiterated having agreed with
the former club “to both the temporary transfer and the permanent transfer of the Player” and
that therefore “no subsequent agreement related to the permanent transfer of the Player was
either necessary or signed”.
25.
According to the Respondent, the player was registered with its club on 1 August 2019 “and
continued seamlessly”.
26.
In this context, the Respondent sustained that since the date of signature of the loan agreement,
i.e. since 1 August 2019, the relevant parties signed no further documents and, as such, it should
be considered that the player was uninterruptedly registered with it as from that date.
27.
In support of its allegations, the Respondent submitted the following documents together with
their respective translations in English:
-
-
“Variazione di Tesseramento” dated 1 August 2019 (translated document entitled
“Professional players’ variation of registration”);
“Premi e/o indennizzi” dated 1 August 2019 (translated document entitled “Bonuses and/or
reimbursements”);
“[Accordo di] obbligo di trasformazione della cessione temporanea in cessione definitiva
(art. 103, par. 3 bis NOIF)” dated 1 August 2019 (translated document entitled “Obligation
to buy (article 103.3 bis NOIF”);
“Contratto [di lavoro]” dated 1 August 2019 (translated document entitled “Agreement”),
i.e. the player’s employment contract, valid as from 2 August 2019 until 30 June 2024.
28.
Lastly, the Respondent sustained that the present matter had already been decided by FIFA
“with the Decision issued on 18 November 2020”.
29.
In support of its allegation, the Respondent provided a copy of FIFA’s letter dated 18 November
2020 (cf. point I.7. above).
30.
As such, the Respondent deemed that FIFA’s communication of 18 November 2020 should be
considered as a final and binding “decision”.
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Replica:
31.
In its replica, the Claimant firstly argued that in accordance with the information provided by the
FIGC (cf. point I.27. above), the operation made between the former club and the Respondent
“produced effect […] from SEPTEMBER 2020 (first day of the [sporting season] 2020/2021)”.
32.
According to the Claimant, the alleged date of registration mentioned by the Respondent was
not in line with the Regulations of the FIGC.
33.
The Claimant referred to the loan agreement and added that “the economic conditions and the
price agreed had to be paid once the contract was indeed permanent in Season 2020/2021”.
34.
The Claimant further highlighted that in accordance with the provisions of art. 2 par. 1 of
Annexe 5 of the RSTP “the criteria in order to determine whether the solidarity contribution is
paid comes from the registration and/or the date of effective payment”. In this context, the
Claimant underlined that “the registration was done in September 2020 and the payments are
agreed as of sporting season 2020/2021”.
35.
As regards the permanent transfer of the player to the Respondent, the Claimant sustained that
“without the registration within the proceedings of Serie A and in accordance to the F.I.G.C.’s
Regulations, those contracts may not be registered no[r] producing the corresponding legal
effects”.
36.
As such, the Claimant insisted on the “condi[t]io sine qua non“ that the contract must be
approved to make the registration from temporary to permanent. In this respect, the Claimant
pointed out that “without the approval and registration of the contract from temporary to
permanent, that transfer contract has not federative nor legal effect”.
37.
In addition, the Claimant pointed out that the FIGC “has stated that the registration of the Player
produced effect and was effectively registered as of September 2020”.
38.
As a result, the Claimant was of the opinion that “with no doubt” the registration and effects
of the agreement were “from SEPTEMBER 2020 (first day of the ss 2020/2021)”.
39.
In continuation, the Claimant referred to the provisions of article 151(1) of the Swiss Code of
Obligations, according to which “a contract which is dependent upon the occurrence of an
uncertain fact in order to be binding is deemed to be conditional” and argued that “[e]ven if
the conversion of the temporary transfer to a permanent one had been configured through the
fulfilment of a suspensive condition, the federative effects / relative to the effective registration
do not occur until the following season” (in casu, until the season of 2020/2021).
40.
With regard to the applicable edition of the RSTP, the Claimant held that, in the matter at hand,
the Respondent “cannot allege that there is a retroactivity and it cannot say the contract came
into force in February 2020 […] because […] said contract cannot be registered until the opening
of the next Summer market since said condition could happen or not”.
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41.
On the other hand, the Claimant also pointed out “how unusual is to put a purchase option with
a clause that is very likely to happen”. Making reference to the purchase option stipulated under
the loan agreement, the Claimant deemed that the main intention of the involved clubs “was to
disguise the true nature of the agreement (in this case a loan agreement) making a stipulation
that seems legit but hides another intention that could have been to ensure the transfer in season
2019/2020 but to register it afterwards in season 2020/2021”.
42.
Lastly, the Claimant requested the Respondent “to disclose any and all private agreements
between the Respondent and the former club in relation to the Player’s temporary and
permanent transfer”.
Duplica:
43.
Referring to the provisions of article 26 of the RSTP, the Respondent reiterated that “[s]ince the
agreement to definitively transfer the Player occurred on 1 August 2019 with the Transfer
Agreement, that is the date which must be used to determine what edition of the RSTP is
applicable”.
44.
The Respondent underlined that the “determining factor” to be considered was the moment the
parties agreed to the definitive transfer of the player and not when the effects of such agreement
were formally recorded by the FIGC at the beginning of the new season.
45.
Alternatively, the Respondent stated that “if the [DRC] considers that the agreement did not
occur until 16 February 2020 when the Condition was fulfilled, then that is the date that must
be used”.
46.
In continuation, the Respondent considered that in both scenarios (cf. points I.44. and I.45.
above), the signature of the contract at the center of dispute must be deemed to have occurred
before the issuance of the (June) 2020 RSTP and, therefore, the new rules on solidarity
contribution contained therein were not applicable.
47.
The Respondent added that any different interpretation would lead to a violation of the so-called
“prohibition of issuing rules having retrospective effect” under Swiss law, as the 2020 edition of
the RSTP was not in force when the permanent transfer was agreed.
48.
Referring to the Claimant’s request to be provided with documentation and information (cf.
point I.42. above), the Respondent pointed out that “[t]here is no other agreement between [the
former club] and [the Respondent] concerning the transfer of the Player”.
49.
According to the Respondent, “[t]he only modification that happened in September 2021 was
the change of the player’s status from “on loan” to “permanent” in the records of FIGC” and
such modification was “absolutely administrative in nature since FIGC can only register the
players’ status change when an official transfer window is open in Italy”.
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50.
In this respect, the Respondent emphasized that as a result of the COVID-19 pandemic, “the
2020 Italian football summer transfer window ran from 1 September to 5 October 2020 and,
therefore, the Player’s status change was formally recorded on 1 September 2020, i.e. the very
first day of the summer transfer window in Italy”.
51.
With the above in mind, the Respondent requested that the Claimant’s claim be rejected in its
entirety.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP):
June 2019 edition.
Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber (Procedural Rules): 2021 edition.
Jurisdiction:
Yes, uncontested.
Admissible:
Yes, contested.
Decision:
(i)
Admissibility:
1.
Referring to the principle of ne bis in idem, the Respondent deemed that the present matter had
already been decided by FIFA “with the Decision issued on 18 November 2020” (cf. points I.7.
and I.29. above).
2.
As per the Dispute Resolution Chamber (DRC), FIFA’s correspondence of 18 November 2020 did
not have the consideration of a decision appealable before the Court or Arbitration for Sport
(CAS) as it did not contain any formal decision of a body of FIFA, but only an opinion of the
administration of the latter.
3.
With the above in mind, the DRC considered that FIFA’s letter of 18 November 2020 had a purely
informative character.
4.
As such, the Claimant’s claim is admissible.
(i)
5.
Substance of the matter:
The Claimant requested the payment of the solidarity contribution on the national transfer of
the player to the Respondent on a permanent basis.
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6.
The Respondent contested the entitlement of the Claimant to receive its proportion of the
solidarity contribution arguing the inapplicability of the provisions related to the payment of
solidarity contribution to national transfers in the matter at hand.
7.
The FIFA Circular no. 1709 of 13 February 2020 indicates, inter alia, that the solidarity
mechanism had been extended to national transfers with an international dimension as from 1
July 2020.
8.
The obligation to pay solidarity contribution on national transfers with an international
dimension was introduced with the June 2020 edition of the RSTP, which came into force on 1
July 2020.
9.
According to art. 26 par. 2 of the RSTP, solidarity contribution disputes “shall be assessed
according to the regulations that were in force when the contract at the centre of the dispute
was signed, or when the disputed facts arose”.
10.
The loan agreement was concluded on 1 August 2019 and indicated that the loan would
become permanent if the Respondent earned one point in the 2019/2020 Serie A Championship
after 3 February 2020.
11.
It remained uncontested that, on an unknown date between 3 February 2020 and 1 July 2020,
the aforementioned condition was met and the option to permanently register the player with
the Respondent was triggered. It also remained uncontested that this occurred without further
intervention of the parties to the agreement.
12.
In accordance with the player passport 2 provided by the FIGC, the player was registered with
the Respondent on a permanent basis on 1 September 2020 i.e. at the start of the 2020/2021
season. It is undisputed that such registration occurred as a consequence of the loan of the
player having become permanent before 1 July 2020 and without the further intervention of the
parties to the agreement.
13.
When the loan agreement was concluded, the FIFA Circular no. 1709 had not been issued yet
and the 2019 edition of the RSTP was still applicable. At that time, no solidarity contribution was
payable in the context of national transfers.
14.
When the option to permanently transfer the player to the Respondent was triggered, the June
2020 edition of the RSTP was not yet into force and no solidarity contribution was due in case
of a national transfer of a player.
15.
Only the formal registration of the player on a permanent basis with FIGC occurred after the
June 2020 edition of the RSTP had entered into force.
16.
Applying the June 2020 edition to a transaction that was agreed between the parties one year
before and was triggered before its entering into force, when solidarity contribution was not yet
payable in the context of a national transfer, would go against the principle of legal certainty. It
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would not be fair for the parties to be subjected to a provision that was not applicable at the
moment they discussed the possibility of the player’s loan to become permanent nor when the
loan became de facto permanent with the option having been activated.
17.
In addition, it has to be mentioned that the contract did not foresee for the parties to undertake
further discussions as to the permanent transfer of the player past the Respondent having
obtained one point in the 2019/2020 Serie A Championship after 3 February 2020.
18.
As a result of all of the aforementioned, the applicability of the provisions related to the payment
of solidarity contribution on national transfers that are included in the RSTP as of the entering
into force of the June 2020 edition has in casu to be rejected.
19.
The above reasoning remains in line with the wording of art. 26 par. 2 of the RSTP in accordance
with which the applicable edition of the RSTP to solidarity contribution disputes relies on when
the disputed fact arose or when the contract at the centre of the dispute was signed.
20.
Considering the inapplicability of the provision related to the payment of the solidarity
contribution on national transfers to the matter at stake, the claim of the Claimant is rejected.
21.
No procedural costs are levied as per art. 18 of the Procedural Rules.
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III. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1.
The claim of the Claimant, RCD Espanyol de Barcelona, is admissible.
2.
The claim of the Claimant is rejected.
3.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber).
For the Dispute Resolution Chamber:
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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