Dispute Resolution Chamber
Texto da decisão
REF TMS 6905
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 20 April 2021
regarding solidarity contribution in connection with the transfer of the player Oliver
McBurnie from Swansea City FC (Wales) to Sheffield United FC (England)
BY:
Roy Verm eer (Netherlands), Single Judge of the sub-committee of
the Dispute Resolution Chamber
CLAIMANT:
Chester FC, England
RESPONDENT:
Sheffield United FC, England
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REF TMS 6905
I. FACTS OF THE CASE
Player:
Oliver MCBURNIE
Date of birth:
4 June 1996
Player passport:
issued by The Football Association (FA) on 20 April 2020
Season Birthday Club(s)
03/04
8th
Huddersfield Town FC
th
04/05
9
Huddersfield Town FC
th
05/06
10
Leeds United AFC
06/07
11th
Leeds United AFC
th
07/08
12
Leeds United AFC
th
08/09
13
Leeds United AFC
th
09/10
14
Leeds United AFC
th
10/11
15
Bradford City FC
th
11/12
16
Bradford City FC
th
12/13
17
Bradford City FC
Bradford City FC
th
13/14
18
Manchester United FC
Bradford City FC
Bradford City FC
Chester FC
th
Bradford City FC
14/15
19
Chester FC
Bradford City FC
Bradford City FC
th
Newport County
15/16
20
Bristol Rovers FC
st
16/17
21
17/18
22nd
Barnsley FC
rd
18/19
23
19/20
24th
Sheffield United FC
Registration dates
28.04.2004 – 30.06.2004
01.07.2004 – 05.03.2005
04.11.2005 – 30.06.2006
01.07.2006 – 30.06.2007
01.07.2007 – 30.06.2008
01.07.2008 – 30.06.2009
01.07.2009 – 23.04.2010
10.05.2011 – 30.06.2011
01.07.2011 – 30.06.2012
02.07.2012 – 30.06.2013
01.07.2013 – 24.07.2013
25.07.2013 – 05.08.2013
06.08.2013 – 30.06.2014
01.07.2014 – 21.01.2015
22.01.2015 – 20.02.2015
21.02.2015 – 05.03.2015
06.03.2015 – 25.04.2015
26.04.2015 – 30.06.2015
01.07.2015 – 23.07.2015
26.11.2015 – 24.12.2015
08.03.2016 – 07.05.2016
Wales
31.01.2018 – 31.05.2018
Wales
08.08.2019 – 20.04.2020
Status
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Permanent)
Professional (Temporary)
Professional (Permanent)
Professional (Temporary)
Professional (Permanent)
Professional (Permanent)
Wales - Professional (Temporary)
Professional (Temporary)
Professional (Temporary)
Professional (Permanent)
Sporting season:
1 July to 30 June (England)
Date of transfer:
8 August 2019, from Swansea City FC (Wales) to Sheffield United FC (England)
Conditions:
Fixed transfer fee of GBP 17,000,000 payable as follows:
a. GBP 10,000,000 by 6 August 2019; and
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b. GBP 7,000,000 by 31 July 2020.
Conditional transfer fees payable as follows:
a.
GBP “2,875,000 (three million pounds)” (sic!) payable on 31 July 2020
“in the event of Sheffield retaining its status in the PL at the end of the
2019/20 finishing 17th place or higher”;
b. 15% “of the amount by which the sum or sums actually received by
Sheffield from the Subsequent Transfer(s) (…) exceeds the total of the
sum or sums paid and/or due to be paid (…) by Sheffield to Swansea
under this Agreement as at the date of such Subsequent Transfer(s)”.
In accordance with the transfer agreement, the amounts due as transfer fee
were to be paid “in full without set off or deduction of any kind or nature
whatsoever, including, without limitation, any FIFA solidarity payments (…) so
that the sums specified in this Agreement are the sums received by Swansea.”
Claimant club:
Chester FC (England)
Respondent club:
Sheffield United FC (England)
Former club:
Swansea City FC (Wales)
Claim and Response:
1.
On 2 October 2020, the Claimant requested the payment by the Respondent of a sum
corresponding to 0.11% of the total transfer fee, that is to say 2.2% of the solidarity
contribution generated by the transfer fee paid for the Player. Additionally, the Claimant
requested the payment of interests as from the relevant due dates.
2.
The Claimant argued having trained the Player on two occasions for 81 days during the season
of the Player’s 19th birthday.
3.
On 16 October 2020, the relevant financial details of the transfer were disclosed to the Claimant
by the FIFA administration.
4.
On 21 October 2020, the Claimant amended its claim and additionally requested the payment
of solidarity contribution on the conditional transfer fee in the amount of GBP 3,000,000 arguing
that the Respondent had not been relegated from its main league competition in the season
2019/20. In support of this allegation, the Claimant provided a screenshot of the final English
Premier League season table from the official website of the competition showing that the
Respondent had finished 9th.
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5.
Furthermore, the Claimant requested for solidarity contribution to be calculated as provided for
in the transfer agreement, i.e. in addition to the transfer compensation.
6.
On 22 October 2020, the FIFA administration submitted a proposal to the parties, suggesting
that the Respondent should pay the amount of GBP 23,222.37 to the Claimant plus the relevant
interests as of the due dates.
7.
The proposal was accepted by the Claimant and rejected by the Respondent.
8.
On 23 November 2021, the Respondent contested the entitlement of the Claimant to receive
solidarity contribution arguing that the FA and The Football Association of Wales (FAW)
concluded a “gentlemen’s agreement” excluding the applicability of the FIFA training rewards
system to the transfer of players that occur between Wales and England.
9.
In support of its position, the Respondent presented the following documentation as evidence:
a. FA’s communication to all English Premier League and English Football League clubs
from December 2016 informing them that the FA and the FAW “will not support any
claims for solidarity contribution and/or training compensation between a club in
England and a Welsh Club playing in the in English system”;
b. Respondent’s correspondence with the FA in which the FA confirmed that transfers
between clubs affiliated to the English Premier League, the Football League and the FA
“would be treated as domestic transfers as far as other FA clubs are concerned” and
that, while the FA respects the RSTP for other associations’ clubs, all English Premier
League and Football League clubs shall be treated “in accordance with the domestic
regulations”;
c. Respondent’s correspondence with the FA in which the FA confirmed that clubs
competing in the English football system, including those affiliated to the FAW, “will
not claim for Training Compensation and Solidarity” and that it is “up to the individual
clubs as to whether or not they continue to honour this ‘gentlemen’s agreement’”;
d. Respondent’s correspondence with the Former Club in which the Former Club shared
that they believe there is “no solidarity to distribute”;
e. excerpt from the Regulations of the FAW (art. 1 to 4) by which “The FAW has ceded
its disciplinary powers to The FA” for clubs competing the the English football system;
f.
excerpt from the rules of the English Premier League (art. v.42. & v.43.) by which the
Former Club is to be considered as a full member of the English Premier League;
g. excerpt from the English Football League Rules (art. 51.7) by which membership in the
Football League “shall constitute an agreement between each Club that they shall not
make or continue any claim (to FIFA, the Football Association or any other relevant
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regulatory body of football and/or any judicial bodies exercising jurisdiction pursuant
to any rules thereof) under Article 20 (Training Compensation) and/or Article 21
(Solidarity Mechanism) of the FIFA Regulations on the Status and Transfer of Players in
relation to movement of players between (…) Clubs (or clubs) affiliated to the Football
Association; and (…) Clubs (or clubs) affiliated to the Football Association of Wales but
which participate in leagues sanctioned by the Football Association”; and
h. FIFA DRC decision from 11 April 2019 in the matter between Crossfire Premier Soccer
Club and Tottenham Hotspur by which it “transpires that only information provided by
member associations can be taken into account in order to determine which of their
affiliated clubs are entitled to receive solidarity payments.”
10.
In the alternative, the Respondent requested for the Former Club to be ordered to pay any
amount due as solidarity contribution to the Claimant and for solidarity contribution to be
calculated on the amount of GBP 2,875,000 and not GBP 3,000,000. According to the
Respondent, the transfer agreement included a typographical error. Finally, the Respondent
requested that solidarity contribution is deducted from the transfer fee and not calculated in
addition to it.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): June 2019 edition.
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): 2021 edition.
Jurisdiction:
Yes, uncontested
Admissible:
Yes, uncontested
Decision:
1.
The Claimant is requesting the payment of its portion of solidarity contribution resulting from
the transfer of the Player, which it considers to be equal to 2.2% of the total solidarity
contribution generated.
2.
The Respondent is contesting the entitlement of the Claimant to receive solidarity contribution
for the training and education provided to the player on the basis of an agreement concluded
between the FA and the FAW as to the applicability of the training rewards system of FIFA to
transfer of players between England and Wales.
3.
After careful consideration of evidence and argumentation presented by the Respondent, the
Single Judge of the DRC established that all transfers between clubs affiliated to the FA and the
FAW are subject to the RSTP as transfers between clubs belonging to different associations
affiliated to FIFA. This is evidenced by the fact that all member associations are bound by the
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regulations of FIFA and therefore RSTP, such as the facilitation of transfers between different
associations via TMS.
4.
Further, the Single Judge of the DRC established that any internal agreements between the FA
and the FAW and/or any affiliated clubs are an internal and domestic matter.
5.
Finally, the Single Judge of the DRC noted that the FIFA DRC jurisprudence has already
established that the RSTP does not foresee any "gentlemen’s agreement" which is an internal
regulation between the FA and the FAW that may have effect in the national competitions. Such
internal regulation cannot have effect over the subject claim given that the transfer that gives
right to it has an international component and, as such, fulfills the requirements of Annexe 5 of
the RSTP, namely the international transfer from Wales to England of a professional player during
the course of his contract.
6.
As a result, the provisions set forth in the RSTP as to the payment of solidarity contribution are
applicable in the matter at hand.
7.
It is uncontested that the player was registered with the Claimant on loan during the season of
his 19th birthday as follows: from 22 January 2015 until 20 February 2015 and from 6 March
2015 until 25 April 2015, corresponding to 81 days in total.
8.
It is uncontested that the Respondent did not pay to the Claimant its portion of the due solidarity
contribution generated by the first and second instalments of the fixed transfer fee.
9.
In relation to the Claimant’s entitlement to the solidarity contribution from the conditional
transfer fee, the Single Judge of the DRC reviewed the presented evidence and established that
the Respondent had finished 9th at the end of the 2019/20 season of the English Premier League
and avoided relegation, therefore activating the conditional transfer clause in favour of the
Former Club. The Respondent did not contest that the conditional transfer fee had been paid to
the Former Club.
10.
Taking into account that the sum of GBP 2,875,000 was indicated by the Former Club and the
Respondent in TMS as amount payable as conditional payment, the sum in question and not
GBP 3,000,000 is the one to be taken into account to calculate the total sum due as solidarity
contribution in the matter at hand.
11.
The transfer fee that was to be paid to the Respondent did not include solidarity contribution.
Therefore, solidarity contribution is to be calculated in addition to the relevant transfer
compensation.
12.
As a result, 5% is to be added to the total transfer fee amount of GBP 19,875,000.
Consequently, the amount to be taken into account to calculate the solidarity contribution due
to the Claimant is GBP 20,868,750, i.e. GBP 19,875,000 plus 5%.
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13.
According to art. 21 and art. 1 par. 1 of Annexe 5 RSTP, 5% of the above due transfer fee shall
be deducted as solidarity contribution, that is to say GBP 1,046,053.
14.
The Claimant is entitled to receive its portion of the due solidarity contribution for the training
and education provided to the Player during the course of the season of the Player’s 19th birthday
in accordance with the Player passport of reference.
15.
As per art. 1 par. 1 of Annexe 5 RSTP, solidarity contribution for the season of a player’s 19th
birthday shall amount to 10% of the total solidarity contribution.
16.
If a player is registered for less than a year this amount shall be calculated pro rata (cf. art. 1 par.
1 of Annexe 5 RSTP).
17.
Since the Player was registered with the Claimant for 81 days of the season of his 19th birthday,
the Claimant is entitled to receive 2.22% of the due solidarity contribution, i.e. 2.22% of GBP
1,046,053.
18.
However, and in accordance with the general legal principle of non ultra petita, considering that
the Claimant limited its request to 2.2% of the due solidarity contribution generated by the
transfer of the Player, the latter is entitled to receive the amount of GBP 23,013.16, i.e. 2.2%
of the due solidarity contribution.
19.
In relation to the Claimant’s request for the payment of interests of 5% p.a. as of the due dates,
the Single Judge of the DRC established that the interests on the due solidarity contribution shall
be calculated as follows:
a. for solidarity contribution in the amount of GBP 11,578.95 from the first instalment of
the fixed transfer fee due on 6 August 2019: as from 6 September 2019, i.e. 31 days
as from the due date of the payment of solidarity contribution;
b. for solidarity contribution in the amount of GBP 8,105.26 from the second instalment
of the fixed transfer fee due on 31 July 2020: as from 31 August, i.e. 31 days as from
the due date of the payment of solidarity contribution; and
c. for solidarity contribution in the amount of GBP 3,328.95 from the conditional transfer
fee due on 31 July 2020: as from 31 August, i.e. 31 days as from the due date of the
payment of solidarity contribution.
20.
The Respondent argued that solidarity contribution was to be paid by the Former Club.
21.
The Single Judge of the DRC noted that Annexe 5 of the RSTP established that the responsibility
to pay solidarity contribution is incumbent on the new club of a player.
22.
In accordance with the jurisprudence of the FIFA DRC, in strict application of the provisions set
forth in the RSTP, the player’s new club is ordered to remit the relevant proportion(s) of the 5%
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solidarity contribution due to the club(s) involved in the player’s training in strict application of
art. 1 and 2 of Annexe 5 of the RSTP even if the new club had agreed otherwise with the former
club of the player in the relevant transfer or loan agreement. The new club might lodge a claim
against the former club requesting the reimbursement of the same proportion(s) of the 5% of
the compensation that it received from the player’s new club.
23.
Consequently, the Respondent has to pay the Claimant GBP 23,013.16 as well as the relevant
interests.
24.
In conclusion, the claim of the Claimant is partially accepted.
25.
No procedural costs are levied (cfr. Art 18.1 of Procedural Rules).
26.
The relevant provisions of art. 24bis RSTP are applicable in the present matter.
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III. DECISION
1.
The claim of the Claimant, Chester FC, is partially accepted.
2.
The Respondent, Sheffield United FC, shall pay to the Claimant:
-
GBP 23,013.16 as solidarity contribution, plus interests on that amount as from the
relevant dates, until the date of effective payment as follows:
o
o
o
GBP 11,578.95 plus 5% interest per annum as from 6 September 2019;
GBP 8,105.26 plus 5% interest per annum as from 31 August 2020; and
GBP 3,328.95 plus 5% interest per annum as from 31 August 2020.
3.
Any further claim of the Claimant is rejected.
4.
The Claimant shall immediately inform the Respondent of the bank account to which the
Respondent must pay the due amount (including all applicable interest).
5.
The Respondent shall provide evidence of full payment to [email protected]. If applicable,
the evidence shall be translated into an official FIFA language (English, French, German, Spanish).
6.
If the due amount (including all applicable interest) is not paid by the Respondent within 45 days
as from notification of the bank account details, 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 and for the maximum duration of three
entire and consecutive registration periods.
2. The ban will be lifted immediately, and prior to its complete serving, following confirmation
that the due amount (including all applicable interest) has been received by the Claimant.
3. In the event that the payable amount as per in this decision is still not paid by the end of
the ban of three entire and consecutive registration periods, the present matter shall be
submitted, upon request, to the FIFA Disciplinary Committee.
7.
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 Single Judge of the sub-committee of 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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