Solidarity Contribution
Texto da decisão
REF TMS 9053
Decision of the
Dispute Resolution Chamber
passed on 4 November 2021
regarding solidarity contribution in connection with the transfer of the player Alassane
NDAO to Al Ahli (Saudi Arabia)
BY:
Frans de Weger (Netherlands), Chairperson of the Dispute Resolution
Chamber of the Football Tribunal
CLAIMANT:
RS YOFF, Senegal
RESPONDENT:
AL AHLI, Saudi Arabia
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REF TMS 9053
I. FACTS OF THE CASE
Player:
Alassane NDAO
Date of birth:
20 December 1996
Player passport:
issued by the Fédération Sénégalaise de Football (FSF) at an unknown date
Season
Birthday
Club(s)
Registration dates
Status
12/13
13/14
14/15
15/16
16/17
17/18
18/19
16
17th
18th
19th
20th
21st
22nd
Diamono Dakar
RS Yoff
RS Yoff
Dakar Sacré Coeur
Dakar Sacré Coeur
Dakar Sacré Coeur
Dakar Sacré Coeur
18/03/13 – 01/08/13
06/01/14 – 01/08/14
04/12/14 – 26/07/15
04/11/15 – 26/06/16
30/10/16 – 30/06/17
21/11/17 – 09/06/18
10/10/18 – 26/05/19
Amateur
Professional
Professional
Professional
Professional
Professional
Professional
th
First transfer:
16 January 2020, from Dakar Sacré Coeur (Senegal) to Fatih Karagumruk AS
(Turkey) as a professional (out of contract)
The transfer instruction indicated that the contract of the player with Dakar
Sacré Coeur had expired.
The player signed an employment contract with Fatih Karagumruk AS valid as
from 10 January 2020 until 31 May 2022.
The contract inter alia foresaw a fixed monthly remuneration as follows:
-
USD 12,500 for season 2019/2020;
USD 25,000 for season 2020/2021; and
USD 25,000 for season 2021/2022.
The contract also contained the following clause (cf. clause 6.4 of the contract):
“Future transfer share
In case the player will be transferred from [Fatih Karagumruk AS] to a 3rd club
in exchange of a transfer compensation, [Fatih Karagumruk AS] shall pay to the
player 30% (thirty percent) of the transfer amount, which will be pay by the 3rd
club to [Fatih Karagumruk AS] as transfer fee in 60 days following the receipt
of the transfer amount in full by [Fatih Karagumruk AS].”
Second transfer:
12 August 2021, from Fatih Karagumruk AS (Turkey) to Al Ahli (Saudi Arabia)
as a professional (out of contract)
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REF TMS 9053
The transfer instruction indicated that the player and Fatih Karagumruk AS
mutually terminated their employment contract by way of a termination
agreement, and that the registration of the player with Al Ahli was as a free
agent and without a transfer agreement between the two clubs of reference.
The termination agreement dated 31 July 2021, stipulated that the player and
Fatih Karagumruk AS agreed to mutually terminate the contract which was valid
as from 10 January 2020 until 31 May 2022, upon the payment of the sum of
EUR 2,500,000 payable in two instalments as follows:
-
EUR 1,250,000 by 6 August 2021; and
EUR 1,250,000 by 30 July 2022.
The termination agreement also stipulated the following:
“VALIDITY CONDITION: In case the player fails to pay the 1st instalment
amounting of EUR 1,250,000 (…) to KARAGUMRUK in full and/or in partial
until its due dated (06.08.2021) at the latest, this protocol regarding the early
termination of the contract between the parties shall become null, void and
invalid without the need of any notification, notice and/or court verdict and in
such case the contract between the parties shall continue to be in force and the
player shall continue to serve his professional services to KARAGUMRUK in line
with the contract between the parties. In case the player pays the 1st instalment
EUR 1,250,000 (…) in net until its due date to KARAGUMRUK, KARAGUMRUK
shall make the necessary transactions in order to release the ITC of the player
from Turkish Football Federation to Kingdom of Saudi Arabian Football
Federation upon the formal request on TMS.”
The player signed an employment contract with Al Ahli valid as from 1 August
2021 until 30 June 2024.
The contract inter alia foresaw a fixed monthly remuneration as follows:
-
EUR 109,000 for season 2021/2022;
EUR 100,000 for season 2022/2023; and
EUR 100,000 for season 2023/2024.
The contract also foresaw the following fixed payments:
-
EUR 1,251,000 on 1 August 2021;
EUR 1,250,000 on 1 July 2022; and
EUR 500,000 on 30 August 2023.
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REF TMS 9053
Claimant club:
RS Yoff (Senegal)
Respondent club:
Al Ahli (Saudi Arabia)
Claim and Response:
1.
On 20 September 2021, the Claimant lodged a claim against the Respondent and requested the
payment of EUR 30,000 corresponding to its portion of the solidarity contribution generated by
the transfer of the player to the Respondent, on the basis of the registration of the player with
the Claimant for the seasons of his 17th and 18th birthdays.
2.
The Claimant based its claim on the allegation that the player transferred from Fatih Karagumruk
AS to the Respondent of EUR 3,000,000, as relayed in the media and by the website
Transfermarkt.
3.
On 17 October 2021, the Respondent rejected the claim of the Claimant.
4.
The Respondent insisted that the player was a free agent when it signed the player, the latter
having agreed to a mutual termination of his previous contract with his former club, Fatih
Karagumruk AS.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): February 2021 edition
Procedural Rules Governing the Football Tribunal (Procedural Rules): October
2021 edition
Decision:
1.
The Claimant requested the payment of solidarity contribution on the transfer of the player to
the Respondent. The Claimant based the present claim on the assumption that the player was
transferred from its former club Fatih Karagumruk AS to the Respondent against the payment
of a transfer fee of EUR 3,000,000,
2.
The Respondent rejected the claim of the Claimant and is of the opinion that no solidarity
contribution was due to the Claimant because the player was an out of contract player when he
registered with it, thus there was no transfer agreement in place nor any transfer fee paid to his
former club, Fatih Karagumruk AS.
3.
According to art. 1 par. 1 of Annexe 5 RSTP, if a professional move 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
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REF TMS 9053
compensation and distributed by the new club as a solidarity contribution to the club(s) involved
in his training and education over the years. This solidarity contribution reflects the number of
years (calculated pro rata if less than one year) he was registered with the relevant club(s)
between the calendar years of his 12th and 23rd birthdays.
4.
Equally, as per art. 2 par. 2 of Annexe 5 RSTP, the entitlement to solidarity contribution is
determined as per the player’s career history as provided in the player passport(s).
5.
According to the player passport issued by the FSF, the player was registered with the Claimant
as from 6 January 2014 until 1 August 2014 and as from 4 December 2014 until 26 July 2015.
6.
Thus, it is determined that the player was registered with the Claimant during:
a. 236 days of the calendar year of the player’s 18th birthday; and
b. 207 days of the calendar year of the player’s 19th birthday.
7.
As per art. 1 par. 1 of Annexe 5 of the RSTP, solidarity contribution for the seasons of a player’s
18th and 19th birthday amounts to 10% of the total solidarity contribution per season, and is
calculated pro rata if less than one year.
8.
Therefore, it is established that the Claimant is entitled to receive 12.14% of any solidarity
contribution generated by the transfer of the player, corresponding to:
a. 6.47% for the 236 days of the calendar year of the player’s 18th birthday; and
b. 5.67% for the 207 days of the calendar year of the player’s 19th birthday.
9.
Reverting back to art. 1 par, 1 of Annexe 5 RSTP, solidarity is due on any compensation paid by
the new club to the former club.
10.
In casu, solidarity would be due to the Claimant on any compensation paid by the Respondent
to Fatih Karagumruk AS in relation to the transfer of player on 12 August 2021.
11.
The Respondent indicated that it registered the player as an out of contract player in TMS,
following the mutual termination of his employment with his former club, Fatih Karagumruk AS.
12.
Thus, in principle, no solidarity compensation is due in the absence of payment of transfer
compensation.
13.
Nevertheless, the Claimant maintained that the Respondent paid EUR 3,000,000 to Fatih
Karagumruk AS in this respect, as per online reports.
14.
As per art. 13 par. 5 of the Procedural Rules, a party that asserts a fact has the burden of proving
it.
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REF TMS 9053
15.
In the present case, the Claimant carries the burden of proving that the registration of the player
with the Respondent constituted a transfer from Fatih Karagumruk AS to the Respondent against
the payment of any sort of transfer compensation by the latter to the former.
16.
In line with the wording of art. 1 par. 1 of Annexe 5 RSTP, 5% of any compensation paid within
the scope of a transfer shall be deducted and distributed accordingly to a player’s training club(s).
17.
CAS has in previous decisions1 considered that in order to establish that a transfer of a player
between clubs against the payment of transfer compensation occurred, the following four
elements shall be required:
a.
b.
c.
d.
The consent of the club of origin to the early termination of its contract with the player;
The willingness and consent of the club of destiny to acquire the player’s rights;
The consent of the player to move from one club to the other and; and
The element of price or value of the transaction.
18.
Art. 13 par. 4 of the Procedural Rules stipulates that a chamber may consider and rely on any
evidence not presented by the parties, including without limitation the evidence generated by
or within TMS.
19.
The player and Fatih Karagumruk AS signed a mutual termination agreement on 31 July 2021.
20.
Therefore, the first prerequisite is met, i.e. Fatih Karagumruk AS consented to the early
termination of the contract with the player.
21.
The player and the Respondent signed an employment contract on 1 August 2021.
22.
As such, the second and third prerequisites are met, i.e. the Respondent willingly acquired the
player’s rights and the player consented to register with the Respondent.
23.
As to the value of the transaction, the player agreed via the mutual termination agreement to
pay EUR 2,500,000 to Fatih Karagumruk AS in two instalments as follows:
a. EUR 1,250,000 by 6 August 2021; and
b. EUR 1,250,000 by 30 July 2022.
24.
Equally, the Respondent signed a contract with the player according to which he inter alia was
entitled to receive the following fixed payments:
a. EUR 1,251,000 on 1 August 2021; and
b. EUR 1,250,000 on 1 July 2022.
1
Cf. CAS 2011/A/2356
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REF TMS 9053
25.
The two aforementioned instalments fell respectively due 5 days and 29 days before the
instalments to be paid by the player to the Claimant fell due.
26.
Thus, a correlation between the payments foreseen in the termination agreement and the fixed
payments foreseen in the player’s contract with the Respondent can be established.
27.
In continuation, the player and Fatih Karagumruk AS clearly stipulated in the termination
agreement that the release of the player’s ITC to the Saudi Arabian Football Federation (SAFF)
and the termination of their contract was dependant on the player paying the first instalment of
EUR 1,250,000 by no later than 6 August 2021. In fact, if the player had failed to pay the first
instalment, the termination agreement would be considered null and void and only if the first
instalment was paid by the player to Fatih Karagumruk AS, the latter had to make the necessary
transactions in order to release the ITC of the player from the Turkish Football Federation to the
SAFF. Accordingly, there is a very close connection between the payment and the transfer to the
SAFF.
28.
Although there is no direct mention of the Respondent in the termination agreement, the fact
that the release of the ITC to the SAFF is conditional upon the payment of EUR 1,250,000 makes
it clear that the player and Fatih Karagumruk AS knew that the player was in the process of
transferring to a club affiliated to the SAFF, and that his transfer to the new club was made
conditional upon the fulfilling of this payment.
29.
What is more, the employment contract signed by the player and the Respondent on 1 August
2021 inter alia stipulated that the Respondent had to pay the player EUR 1,251,000 on 1 August
2021, that is to say 5 days before the player had to pay EUR 1,250,000 to his former club in
order to free himself from his previous contract.
30.
Based on the above, it is considered that the intention of the parties involved were to transfer
the player from Fatih Karagumruk AS to the Respondent against the payment of compensation
which was to be made via the player, as per the financial conditions foreseen in the termination
agreement.
31.
Therefore, it is concluded that the termination fee of EUR 2,500,000 payable by the player to
Fatih Karagumruk AS constitutes de facto a transfer compensation and as such can, more
specifically in light of art. 1 par. 1 of Annexe 5 of the RSTP, be considered a compensation paid
within the scope of the transfer of the player from Fatih Karagumruk AS to Al Ahli.
32.
The Respondent did not submit any conclusive evidence that would have permitted to establish
that the player had a genuine interest in paying his former club a sum of EUR 2,500,000 to be
freed from his final year of contract, a sum which is approximately 115 times higher than the
USD 25,000 of fixed remuneration that his contract with Fatih Karagumruk AS foresaw.
33.
In view of all the above, it is determined that the player transferred from Fatih Karagumruk AS
to the Respondent on 12 August 2021 against the payment of a compensation of EUR
2,500,000, payable in two equal instalments as follows:
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REF TMS 9053
a. EUR 1,250,000 on 1 August 2021; and
b. EUR 1,250,000 on 1 July 2022.
34.
Therefore, the fourth prerequisite is met, i.e. the registration of the player with the Respondent
constituted a financial transaction between Fatih Karagumruk AS and the Respondent and that
the Respondent agreed to financially compensate Fatih Karagumruk AS, albeit indirectly, to
secure the player’s services.
35.
According to art. 2 par. 1 of Annexe 5 RSTP, the new club shall pay the solidarity contribution
to the training club(s) pursuant to the above provisions no later than 30 days after the player’s
registration or, in case of contingent payments, 30 days after the date of such payments.
36.
In casu, the Respondent had 30 days to pay solidarity contribution to the Claimant after the due
date of each instalments.
37.
The first instalment fell due on 1 August 2021. Thus, the Respondent had up until 31 August
2021 to pay the due solidarity contribution to the Claimant.
38.
As established above, the Claimant is entitled to receive 12.14% of any solidarity contribution
generated by the to the Respondent, corresponding to:
a. 6.47% for the 236 days of the calendar year of the player’s 18th birthday; and
b. 5.67% for the 207 days of the calendar year of the player’s 19th birthday.
39.
It is uncontested that the Respondent did not pay any due solidarity contribution to the Claimant.
40.
Based on the above, the Claimant is entitled to receive 12.14% of 5% of EUR 1,250,000, i.e.
EUR 7,587.50.
41.
Consequently, the claim of the Claimant is partially accepted and the Respondent shall pay the
Claimant EUR 7,587.50 as solidarity contribution generated by the first instalment of the transfer
fee of reference.
42.
Any further claim of the Claimant is rejected.
43.
According to art. 25 par. 2 of the Procedural Rules, procedural costs are payable for disputes
between clubs regarding the payment of solidarity contribution.
44.
The Claimant claimed the amount of EUR 30,000.
45.
Thus, the amount claimed by the Claimant corresponds to an amount lower than USD 49,999.
Therefore, procedural costs levied in this respect are fixed to USD 5,000 (cf. art. 2 of Annexe 1
to the Procedural Rules.
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REF TMS 9053
46.
According to 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. In exceptional circumstances, the
chamber may order that FIFA assumes all procedural costs.
47.
In view the specific circumstances of the case, procedural costs shall be set at USD 3,000.
48.
In view of the outcome of the claim, said costs shall be borne by the Respondent in full.
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REF TMS 9053
III. DECISION
1.
The claim of the Claimant, RS Yoff, is partially accepted.
2.
The Respondent, Al Ahli, has to pay to the Claimant EUR 7,587.50 as solidarity contribution.
3.
Any further claim of the Claimant is rejected.
4.
Full payment (including all applicable interest) shall be made to the bank account indicated in the
enclosed Bank Account Registration Form.
5.
Pursuant to article 24bis 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 of 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. This decision is rendered without costs. The final costs of the proceedings in the amount of USD
3,000 are to be paid by the Respondent to FIFA with reference to case no. TMS 9053 (cf. note
relating to the payment of the procedural costs below).
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 9053
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 17 of the Procedural Rules).
CONTACT INFORMATION:
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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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