Labour Disputes
Texto da decisão
REF. FPSD-14102
Decision of the
Players’ Status Chamber
passed on 25 June 2024
regarding a dispute concerning the transfer of
the player Keito Nakamura
COMPOSITION:
Javier Vijande Penas (Argentina), Chairperson
Christina LaBrie (USA), member
Jesús Arroyo (Spain), member
CLAIMANT:
LASK, Austria
Represented by Aigner Rechtsanwalts-GmbH
RESPONDENT:
Stade de Reims, France
pg. 2
REF. FPSD-14102
I. Facts of the case
1.
On 9 August 2023, the Austrian club LASK (hereinafter: the Claimant), and the French club,
Stade de Reims (hereinafter: the Respondent) concluded an agreement (hereinafter: the
transfer agreement) regarding the definitive transfer of the player Keito Nakamura.
2.
According to the transfer agreement, the Respondent undertook to pay the Claimant a
fixed transfer fee of EUR 8,000,000 net, as well as a conditional transfer fee of EUR 250,000
net for 4 starting appearances of the player with the Japanese national team.
3.
Furthermore, art. 2.9 of the transfer agreement stipulated as follows:
“All sums set forth in this (transfer) agreement to be paid by Stade de Reims to LASK are in
principle inclusive of any sums of training compensation and solidarity contribution as detailed
in the FIFA Regulations on the status and transfer of players. The solidarity contribution due to
third clubs, including LASK in connection with the representational transfer shall be borne by
the parties in equal parts (half each).”
4.
On 6 August 2023, the Claimant sent the Respondent two invoices corresponding to:
-
-
5.
EUR 7,600,000 (fixed transfer fee of EUR 8,000,000 minus 5% for solidarity) payable in
the following instalments:
o
EUR 1,900,000 due on 15 September 2023;
o
EUR 1,900,000 due on 31 January 2024;
o
EUR 950,000 due on 31 July 2024;
o
EUR 950,000 due on 31 January 2025;
o
EUR 1,900,000 due on 31 September 2025
EUR 200,000 (half of 5% corresponding to the solidarity contribution) payable in the
following instalments:
o
EUR 50,000 due on 15 September 2023;
o
EUR 50,000 due on 31 January 2024;
o
EUR 25,000 due on 31 July 2024;
o
EUR 25,000 due on 31 January 2025;
o
EUR 50,000 due on 31 September 2025.
At unspecified points in time, the Respondent adequately paid the first two instalments
due under the invoice of EUR 7,600,000 (i.e., corresponding to the principal transfer sum).
pg. 3
REF. FPSD-14102
6.
On 29 August 2023, after allegedly being requested to pay both of the invoices sent on
6 August 2023, the Respondent addressed the Claimant via e-mail as follows:
“Dear [Claimant’s legal counsel],
I think there is some confusion. If we accept your proposal, that would mean we will pay you
95% of the transfer fee, then we will pay 5% to the FIFA Clearing House of solidarity
contribution, and finally we will pay you an additional 2.5% of solidarity contribution. This
would amount to paying 102.5% of the transfer fee, whereas the agreement provides the
sharing of the solidarity contribution!
So, I don’t know if you understood correctly that when the solidarity contribution is included
in the transfer fee, the total paid by the buying club is 100% (95% of the transfer fee + 5% of
the solidarity contribution) and not 105% as you seem to think.
Moreover, in our agreement, the solidarity contribution is paid 50/50 by our two clubs. So,
we should pay 95% of the transfer fee + 2.5% of the solidarity contribution (for a total of
97.5% of the transfer fee).
Our proposal is as follows :
1) Stade de Reims pays 95% of the transfer fee to LASK;
2) Stade de Reims pays 5% of the transfer fee to the FIFA Clearing House under the solidarity
contribution, from which LASK will also receive a part of it. This would mean when the EPP
is generated by FCH, Stade de Reims will not process/upload any waiver (stating the 50/50
agreement between the clubs) to FCH;
3) Stade de Reims will charge EUR 200,000 (2.5% of the solidarity contribution) to LASK
without involving the FIFA Clearing House in this part of the process.
We think it would be the most convenient process to make a separate invoice on pro rata
basis regarding the EUR 200,00 by now.”
7.
Alongside said correspondence, the Respondent included an invoice for EUR 200,000 to be
payable by the Claimant to itself.
8.
On 24 January 2024, the Claimant issued an invoice to the Respondent for EUR 237,500,
corresponding to the bonus achieved for starting appearances in the Japanese national
team, minus 5% corresponding to solidarity. This invoice was paid timely by the
Respondent.
9.
The Claimant also issued another corresponding invoice for EUR 6,250, corresponding to
half of the deducted 5% in the first invoice as a reimbursement.
10. On 30 January 2024, the Respondent sent an invoice of its own for the amount of EUR 6,250.
pg. 4
REF. FPSD-14102
II. Proceedings before FIFA
11. On 18 March 2024, the Claimant filed the claim at hand before FIFA. A brief summary of
the position of the parties is detailed in continuation.
a. Position of the Claimant
12. In its claim, the Claimant held that the wording of art. 2.9 of the Transfer Agreement is
unequivocal, and that the Respondent must, in addition to the principal transfer fee (in its
respective instalments) also pay half of the solidarity deduction.
13. The Claimant remarked that, if it were to pay the Respondent 2.5% of the transfer fee as a
“reimbursement” of the solidarity contribution, then it would end up only receiving 92.5%
of the total transfer fee – which is far from the parties’ true intention as to the splitting of
the solidarity costs.
14. Equally, the Claimant argued that the Respondent would unjustly enrich itself by being able
to “retain” 2.5% of the transfer fee, whereas it did not train the player at all.
15. The Claimant also wished to outline that the invoices the Respondent produced are “mock
invoices” to escape its true obligation to pay its half of the solidarity contribution in bad
faith.
16. Therefore, the Claimant formulated the following request for relief:
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EUR 50,000 plus interest as from 15 September 2023;
EUR 50,000 plus interest as from 31 January 2024;
EUR 6,250 plus interest as from 24 January 2024.
b. Position of the Respondent
17. Despite having been invited to do so, the Respondent failed to submit a timely reply to the
claim.
pg. 5
REF. FPSD-14102
III. Considerations of the Players Status Chamber
a. Competence and applicable legal framework
18. First of all, the Players’ Status Chamber (hereinafter referred to as Chamber) analysed
whether it was competent to deal with the case at hand. In this respect, it took note that
the present matter was presented to FIFA on 18 March 2024 and submitted for decision on
25 June 2024. Taking into account the wording of art. 34 of the March 2023 edition of the
Procedural Rules Governing the Football Tribunal (hereinafter: the Procedural Rules), the
aforementioned edition of the Procedural Rules is applicable to the matter at hand.
19. Subsequently, the members of the Chamber referred to art. 2 par. 1 of the Procedural Rules
and observed that in accordance with art. 23 par. 2 in combination with art. 22 lit. g) of the
Regulations on the Status and Transfer of Players (June 2024 edition), the Players’ Status
Chamber is competent to deal with the matter at stake, which concerns a dispute
concerning the transfer of a player with an international dimension between an Austrian
club and a French club.
20. Subsequently, the Chamber analysed which regulations should be applicable as to the
substance of the matter. In this respect, it confirmed that, in accordance with art. 26 par. 1
and 2 of the Regulations on the Status and Transfer of Players (June 2024 edition) and
considering that the present claim was lodged on 18 March 2024, the February 2024 edition
of said regulations (hereinafter: the Regulations) is applicable to the matter at hand as to
the substance.
b. Burden of proof
21. The Chamber recalled the basic principle of burden of proof, as stipulated in art. 13
par. 5 of the Procedural Rules, according to which a party claiming a right on the basis of
an alleged fact shall carry the respective burden of proof. Likewise, the Chamber stressed
the wording of art. 13 par. 4 of the Procedural Rules, pursuant to which it may consider
evidence not filed by the parties, including without limitation the evidence generated by or
within the Transfer Matching System (TMS).
c. Merits of the dispute
22. Its competence and the applicable regulations having been established, the Chamber
entered into the merits of the dispute. In this respect, the Chamber started by
acknowledging all the above-mentioned facts as well as the arguments and the
documentation on file. However, the Chamber emphasised that in the following
considerations it will refer only to the facts, arguments and documentary evidence, which
it considered pertinent for the assessment of the matter at hand.
pg. 6
REF. FPSD-14102
i. Main legal discussion and considerations
23. The foregoing having been established, the Chamber moved to the substance of the
matter, and took note of the fact that the basis of the present dispute concerned overdue
payables arising from solidarity contributions subject to a transfer agreement.
24. In this context, the Chamber acknowledged that it its task was to determine whether the
Claimant was indeed entitled to the payment of certain amounts stipulated under the
transfer agreement based on the parties’ alleged mutual consensus to “share solidarity
contributions”.
25. The Chamber subsequently proceeded to analyse the parties’ respective submissions,
starting with the Claimant, according to whom the Respondent was due to remit
EUR 106,250, corresponding to half of the share deducted from the first two guaranteed
instalments of the principal transfer fee, and the first instalment of the conditional fee, due
to the solidarity mechanism.
26. The Respondent, on the other hand, failed to reply to the claim within the granted time
limit.
27. At this stage, the Chamber deemed it important to highlight that, although the Respondent
failed to provide a position to the claim within the stipulated deadline, thus not contesting
the non-payment of the relevant amounts, the Claimant’s entitlement thereto cannot be
taken for granted and must be considered in accordance with the arguments and evidence
on file, and also any information available to FIFA ex officio, incl., in particular, TMS.
28. With this set out, the Chamber recalled the financial conditions of the player’s transfer,
namely:
-
EUR 8,000,000 fixed transfer fee payable in instalments, of which the first two
(EUR 2,000,000 each) have fallen due.
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EUR 250,000 conditional bonus, for which the obtention of the relevant condition
remains undisputed.
29. Equally, the Chamber revisited the wording of art. 2.9 of the Transfer Agreement, which is
the provision in dispute:
“All sums set forth in this (transfer) agreement to be paid by Stade de Reims to LASK are in
principle inclusive of any sums of training compensation and solidarity contribution as detailed
in the FIFA Regulations on the status and transfer of players. The solidarity contribution due to
third clubs, including LASK in connection with the representational transfer shall be borne by
the parties in equal parts (half each).”
pg. 7
REF. FPSD-14102
30. Having stated this, the Chamber referred to the wording of art. 1 par. 1 of Annexe 5 of the
Regulations, which governs the payment of solidarity contribution. Subject thereto, it is laid
down that whenever a professional moves during the course of a contract, 5% of any
compensation paid within the scope of this transfer, 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.
31. The Chamber was, thus, able to establish that it is, in theory, the new club’s (i.e., the
Respondent’s) obligation to distribute solidarity contribution to the former club(s) through
the FIFA Clearing House.
32. This would mean that the Claimant is automatically excluded from the distribution process
(in the sense that it cannot withhold or be reimbursed 2.5% of the relevant transfer fee, to
then distribute 2.5% of the solidarity contribution on its own to the respective
beneficiaries). The Chamber pointed out that this would be contrary to the established
payment practice.
33. Therefore, the Chamber opined that the obligation to pay solidarity contribution
(represented by the share of 5%), at first, falls solely on the new club (i.e., the Respondent).
34. Thereafter, in order to ensure that the obligation is borne mutually – as objectively
stipulated by art. 2.9 of the transfer agreement, the Chamber understood that the Claimant
would have to reimburse its share of 2.5% (whilst accounting for any actual solidarity
payments it is entitled to itself) to the Respondent.
35. The Chamber acknowledged that, whilst this would result in the Claimant being entitled to
an overall share of less than 95% of the principal transfer fee, it is the only logical
interpretation of art. 2.9 of the transfer agreement, as a “reimbursement” of 2.5% of the
principal transfer fee from the Respondent to the Claimant would mean that the
Respondent would have to pay:
-
95% as undisputed principal transfer fee;
5% as withheld solidarity contribution, which must be paid to the FIFA Clearing
House;
2.5% as “reimbursement” to the Claimant.
= 102.5% of the total transfer fee.
(Emphasis added)
36. The Chamber then continued by stating that such calculation must be read in the particular
context of art. 2.9 of the transfer agreement, which clearly outlines that the transfer fee is
“inclusive of any sums of training compensation and solidarity contribution”.
pg. 8
REF. FPSD-14102
37. Therefore, the Chamber understood that the effect of art. 2.9 of the transfer agreement
was that, instead of the Claimant, it was rather the Respondent (after the relevant amounts
defined in the allocation statement have been paid from the withheld 5%) who must
receive a reimbursement.
38. Based on the above conclusion, the Chamber was able to establish that the Claimant has
no contractual right to the amounts in dispute.
39. On the other hand, the Chamber held that, as the Respondent lodged no counterclaim
during the present proceedings, no liability has arisen in respect of the disputed amounts
for either party.
40. In conclusion, the Chamber decided to reject the claim at hand.
d. Costs
41. Finally, the Chamber referred to art. 25 par. 1 and 2 of the Procedural Rules, according to
which in disputes between clubs, costs in the maximum amount of USD 25,000 are levied.
As per 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.
42. Taking into account that the claim of the Claimant has been fully rejected, the Chamber
concluded that the Claimant shall bear the costs of the current proceedings before FIFA.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to be levied
on the basis of the amount in dispute. Consequently, the Chamber concluded that the
maximum amount of costs of the proceedings corresponds to USD 10,000.
43. In light of the above, the Chamber determined the costs of the current proceedings to the
amount of USD 10,000 and concluded that said amount has to be paid by the Claimant.
44. Lastly, the Chamber concluded its deliberations by rejecting any other requests for relief
made by any of the parties.
pg. 9
REF. FPSD-14102
IV. Decision of the Players’ Status Chamber
1.
The claim of the Claimant, LASK, is rejected.
2.
The final costs of the proceedings in the amount of USD 10,000 are to be paid by the
Claimant to FIFA. As the Claimant already paid the amount of USD 3,000 to FIFA as advance
of costs at the start of the proceedings, the residual amount of USD 7,000 is still to be paid
as procedural costs.
For the Football Tribunal:
Emilio García Silvero
Chief Legal & Compliance Officer
pg. 10
REF. FPSD-14102
NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 57 par. 1 of the FIFA Statutes, this decision may be appealed against before
the Court of Arbitration for Sport (CAS) within 21 days of receipt of the notification of this
decision.
NOTE RELATED TO THE 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 Governing the Football
Tribunal).
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
pg. 11