Solidarity Contribution
Texto da decisão
REF TMS 11937
Decision of the
Dispute Resolution Chamber
passed on 26 January 2023
regarding solidarity contribution for the transfer of the player Nicolas
Brice MOUMI NGAMALEU from BSC Young Boys (Switzerland) to AO
Futbolnyi klub DinamoMoskva (Russia)
BY:
Stefano Sartori (Italy)
CLAIMANT:
MUSANGO FC, Cameroon
RESPONDENT:
AO Futbolnyi klub DinamoMoskva, Russia
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REF TMS 11937
I. FACTS OF THE CASE
Player:
Nicolas Brice MOUMI NGAMALEU
Date of birth:
7 July 1994
Player passport:
issued by the Fédération Camerounaise de Football (FECAFOOT) on 20
September 2022:
Season
Birthday
06/07
12th
07/08
13
Club(s)
Fecafoot
Registration dates
Status
20.02.07 – 24.10.07
Amateur
09.12.07 – 02.08.08
Amateur
29.10.08 – 28.06.09
Amateur
24.10.09 – 28.06.10
Amateur
02.08.10 – 30.07.11
Amateur
30.09.11 – 31.03.12
Amateur
03.03.12 – 31.07.12
Professional
01.12.12 – 31.10.13
Professional
11.12.13 – 31.10.14
Professional
01.12.14 – 31.10.15
Professional
01.12.15 – 13.05.16
Amateur
14.05.16 – 30.09.16
Amateur
Academy
th
Fecafoot
Academy
08/09
14th
Musango FC de
Yaounde
09/10
15th
10/11
16
th
11/12
17
th
Musango FC de
Yaounde
Musango FC de
Yaounde
Musango FC de
Yaounde
11/12
17th
Canon Sportif de
Yaounde
12/13
18th
13/14
19
th
14/15
20
th
Coton Sport de
Garoua
Coton Sport de
Garoua
Coton Sport de
Garoua
15/16
21st
Rainbow FC de
Bamenda
15/16
21st
Musango FC de
Yaounde
Date of transfer:
8 September 2022 from BSC Young Boys (Switzerland) to AO Futbolnyi
klub DinamoMoskva (Russia)
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REF TMS 11937
Financial Conditions:
Transfer fee: EUR 2,000,000 payable as follows:
-
EUR 1,000,000 on 30 September 2022; and
-
EUR 1,000,000 30 September 2023.
The transfer agreement further provided the following clause 2.6.: “The
parties agree additionally that if the Player is fielded in at least one match of
the FIFA World Cup 2022, DYNAMO shall pay to YOUNG BOYS a Bonus
transfer fee in the amount of 50% (…) of the compensation effectively received
by DYNAMO from FIFA (if any) for releasing players to the FIFA world Cup
representative teams participating (…)”.
Claimant club:
MUSANGO FC, Cameroon
Respondent club:
AO Futbolnyi klub DinamoMoskva, Russia
Claim and Response:
1.
On 2 December 2022, the Claimant lodged a claim for solidarity contribution against the
Respondent requesting “30 % of 5% of the total amount of the compensation paid by the
Respondent to BSC Young boys as solidarity contribution in connection with the transfer of
the Player”.
2.
In particular, the Claimant explained that it contacted the Respondent on 10 November
2022 requesting it to proceed with the payment of the due solidarity contribution,
however to no avail.
3.
On 5 December 2022, the FIFA general secretariat disclosed the aforementioned
financial terms to the Claimant.
4.
On 9 December 2022, the Claimant completed its claim and requested inter alia “EUR
12,068.50 [i.e. 24.08%] as solidarity contribution in connection with the transfer of the Player
as well as 5 % interest p.a. as of the due date” in respect of the first instalment of the
transfer fee.
5.
In addition, the Claimant requested as well “FC DYNAMO MOSCOW to disclose the exact
amount paid by FIFA in connection with the participation of the Player to the 2022 World Cup
in Qatar. Once said information will be transmitted, MUSANGO FC will be able to calculate
the exact amount due as solidarity contribution in this respect.”
6.
The Claimant did not provide any evidence in this respect.
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7.
On 12 December 2022, the FIFA general secretariat submitted a proposal to the parties
to settle the matter suggesting that the Respondent should pay the Claimant the sum of
EUR 14,005 (28.01% of the due solidarity contribution) plus 5% interest per annum as
from 31 October 2022 until the date of effective payment.
8.
The Claimant tacitly accepted the proposal.
9.
By means of its correspondence of 13 January 2023, the Respondent did not contest the
Claimant’s entitlement to receive its share of solidarity contribution in relation to the
transfer of reference.
10.
However, the Respondent explained that it contacted the FECAFOOT on 19 September
2022 in order to obtain the player’s passport for the purposes of calculating the due
solidarity contribution, however to no avail.
11.
The Respondent submitted the aforementioned correspondence and held that it could
therefore not be held liable to pay any late payment interest.
12.
In addition, the Respondent held that according to its calculations, the Claimant was
entitled to the amount of EUR 13,593.98 as solidarity contribution, which it offered to
pay to the latter upon receipt of its confirmation and the submission of the relevant
invoice.
13.
On 16 January 2023, the FIFA general secretariat requested the Claimant to confirm its
acceptance of the Respondent’s aforementioned offer.
14.
On 18 January 2023, the Claimant rejected the said offer indicating that it expected the
payment of the amount of solidarity contribution as per the FIFA general secretariat’s
proposal; that it had already tried to contact the Respondent in November 2022,
however to no avail; and that it should not suffer from the FECAFOOT’s shortcomings.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): July 2022
edition.
Procedural Rules Governing the Football Tribunal (Procedural Rules):
October 2022 edition.
Jurisdiction:
Yes, uncontested
Admissibility:
Yes, uncontested
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REF TMS 11937
Decision:
1.
The Claimant requested the payment of its portion of solidarity contribution on the first
instalment of the transfer fee of reference, which it considered equal to EUR 12,068.50,
i.e. 24.08% of the solidarity contribution, plus 5% interest p.a. as of the due date.
2.
The Claimant accepted the proposal of the FIFA general secretariat.
3.
The Respondent did not contest the Claimant’s entitlement to its share of solidarity
contribution but held that the amount due to the latter equalled to EUR 13,593.98 which
it offered to pay to the Claimant as a final settlement. As such, the Respondent rejected
the proposal de facto.
4.
In addition, the Respondent rejected the application of late payment interests to the said
amount because of its alleged good faith in trying to obtain the player’s career details
from the FECAFOOT, however to no avail.
5.
The Claimant refused to accept the aforementioned offered amount which, in its
opinion, did not match the FIFA proposal.
6.
According to the FECAFOOT player passport of reference, the player was registered with
the Claimant as follows:
-
as from 29 October until 31 December 2008, corresponding to 64 days of the
calendar year of the player’s 14th birthday;
as from 1 January until 28 June and as from 24 October until 31 December 2009,
corresponding to 248 days of the calendar year of the player’s 15th birthday;
as from 1 January until 28 June and as from 2 August until 31 December 2010,
corresponding to 331 days of the calendar year of the player’s 16th birthday;
as from 1 January until 30 July and as from 30 September until 31 December 2011,
corresponding to 304 days of the calendar year of the player’s 17th birthday;
as from 1 January until 2 March 2012, corresponding to 62 days of the calendar year
of the player’s 18th birthday; and
as from 14 May until 30 September 2016, corresponding to 140 days of the calendar
year of the player’s 22nd birthday.
7.
It is undisputed that the Respondent did not pay to the Claimant its portion of the due
solidarity contribution generated by the payment of the of the transfer fee.
8.
In accordance with art. 2 par. 1 of Annexe 5 of the 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.
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9.
The amount to be taken into account to calculate the solidarity contribution due to the
Claimant is in principle EUR 1,000,000, corresponding to the first installment of the
transfer fee, the second having not yet become due.
10.
However, the Claimant requested that any amount received by the Respondent in
application of clause 2.6. of the transfer agreement shall be disclosed by the latter.
11.
At the same time, the Claimant did not provide any evidence in support of its request
related to the amounts allegedly received by the former club in respect of clause 2.6. of
the transfer agreement.
12.
Art. 1 par. 1 of Annexe 1 of the RSTP indicates that Clubs are obliged to release their
registered players to the representative teams of the country for which the player is
eligible to play on the basis of his nationality if they are called up by the association
concerned.
13.
Art. 2 par. 1 of the RSTP stipulates that Clubs releasing a player in accordance with the
provisions of this annexe are not entitled to financial compensation.
14.
Bearing the above in mind, and in line with the principle of the burden of proof of art.
13 par. 5 pf the Procedural Rules, the aforementioned request of the Claimant shall be
disregarded given that there are no elements in favor of proving that any compensation
has been received by the Respondent for releasing the player to the FIFA 2022 World
Cup with his national team.
15.
Thus, in the matter at hand, the Claimant is in principle entitled to receive its proportion
of the due solidarity contribution for the training and education provided to the player
during the period of training as established above.
16.
As per art. 1 par. 1 of Annexe 5 of the RSTP, the solidarity contribution for the calendar
year of the player’s 12th - 15th birthday amounts to 5% of 5% of any compensation paid
while for the player’s 16th - 23rd birthday it amounts to 10% of 5% of any compensation
paid.
17.
If a player is registered for less than a year this amount is to be calculated on a pro rata
basis (cf. art. 1 par. 1 of Annexe 5 of the RSTP).
18.
Taking into account the time that the player was registered with the Claimant as
established in point II.6. above, the Claimant is entitled to receive in principle 27.22% of
the solidarity contribution due, as follows:
-
EUR 440, i.e. 0.88% of the 5% of the solidarity contribution for having trained the
player during 64 days of the calendar year of his 14th birthday;
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REF TMS 11937
-
EUR 1,700, i.e. 3.40% of the 5% of the solidarity contribution for having trained the
player during 248 days of the calendar year of his 15th birthday;
EUR 4,535, i.e. 9.07% of the 10% of the solidarity contribution for having trained the
player during 331 days of the calendar year of his 16th birthday;
EUR 4,165, i.e. 8.33% of the 10% of the solidarity contribution for having trained the
player during 304 days of the calendar year of his 17th birthday;
EUR 850, i.e. 1.70% of the 10% of the solidarity contribution for having trained the
player during 62 days of the calendar year of his 18th birthday; and
EUR 1,920, i.e. 3.84% of the 10% of the solidarity contribution for having trained the
player during 140 days of the calendar year of his 22nd birthday.
19.
In view of all the aforementioned, the Respondent has in principle to pay to the Claimant
EUR 13,610 as solidarity contribution.
20.
However, the Claimant limited its claim to EUR 12,068.50 as per its correspondence of 9
December 2022 and should therefore be awarded what it requested in line with the
principle of non-ultra petita.
21.
Consequently, the claim of the Claimant is accepted.
22.
In addition, the Claimant requested the payment of 5% interest p.a. as of the due date.
23.
The Respondent rejected such application of interest because of the missed attempts to
pay in due time which was the consequence of the failed provision of the player passport
by the FECAFOOT.
24.
However, according to the evidence provided by the Respondent, the latter did not show
further efforts in trying to obtain the requested information form the FECAFOOT at a
later stage nor did it contact the Claimant directly or reply to it after the latter’s inquiry
of 10 November 2022.
25.
As such, and given the above, it is deemed that the Respondent’s request cannot be
accepted.
26.
As such and according to the well-established jurisprudence of the DRC with regard to
interest, the Claimant is entitled to receive interest of 5% p.a. over the amount payable
as solidarity contribution as of the 31st day after the date set for the payment of the first
installment transfer fee of reference, i.e. as from 31 October 2022.
27.
Art. 25 par. 2 of the Procedural Rules stipulates that costs in the maximum amount of
USD 25,000 are levied in connection with proceedings before the DRC of the Football
Tribunal relating to disputes regarding training compensation and the solidarity
mechanism. Costs are to be borne in consideration of the parties’ degree of success in
the proceedings (art. 25 par. 5 of the Procedural Rules).
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28.
The amount claimed in the present dispute is below USD 49,999.99. Therefore,
procedural costs levied in this respect shall not exceed USD 5,000 (cf. art. 2 of Annexe 1
of the Procedural Rules).
29.
Taking into account the above, procedural costs in the amount of USD 1,200 are to be
paid by the Respondent.
30.
The relevant provisions of art. 24 of the RSTP are applicable to the present matter.
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III. Decision of the Dispute Resolution Chamber
▪
1.
The claim of the Claimant, MUSANGO FC, is accepted.
2.
The Respondent, AO Futbolnyi klub DinamoMoskva, has to pay to the Claimant EUR
12,068.50 as solidarity contribution, plus 5% interest per annum as from 31 October 2022
until the date of 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.
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
or Spanish).
5.
Pursuant to article 24 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, 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 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 in accordance
with article 24 paragraphs 7 and 8 and article 25 of the Regulations on the Status and
Transfer of Players.
7. The final costs of the proceedings in the amount of USD 1,200 are to be paid by the
Respondent to FIFA with reference to case no. TMS 11937 (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 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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