Solidarity Contribution
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the Dis pute
Res olution Cham ber (DRC)
passed on 29 November 2019,
by Roy Verm eer (The Netherlands),
Single Judge of the sub-committee of the DRC,
on the claim presented by the club,
CMS , Gabon
as Claimant
against the club,
EA Guingam p, France
as Respondent
regarding solidarity contribution in connection with the transfer
of the player Didier Ndong Ibrahim
I.
Facts of the cas e
1.
According to the player passport issued by the Federation Gabonaise de Football, the player,
Didier Ndong Ibrahim (hereinafter: the player), born on 17 June 1994, was registered with
the club CMS (hereinafter: the Claimant) as from 28 January 2006 until 4 September 2012.
2.
The football seasons in Gabon during the period of time the player was registered with the
Claimant started on 1 August and ended on 31 July of the next calendar year.
3.
According to the information contained in the Transfer Matching System (TMS), the English
club, Sunderland AFC, and the player signed a Settlement Agreement dated 10 October
2018, according to which the player had to pay to Sunderland AFC the amount of EUR
4,000,000 as “damages incurred by [Sunderland AFC] as a result of the termination of the
Contract”.
4.
Equally, according to the TMS, on 2 January 2019, Sunderland AFC, the player and the French
club, EA Guingamp (hereinafter: the Respondent) signed an Addendum to the abovementioned Settlement Agreement. In this regard the Addendum stipulates the following:
“[the player] recognized the rights of [Sunderland AFC] to receive the payment of
€4,000,000 (four million euros) (the “Compensation Payment”), to be paid by any club for
whom you might subsequently sign.”
5.
Furthermore, Sunderland AFC and the Respondent agreed upon a variation of the
Settlement Agreement as follows:
“In compensation for the transfer of your player registration, the Club shall receive from
EAG [the Respondent]:
1.1 the payment of € 1,500,000 (one and a half million euros) payable by EAG to the Club
as soon as practicable, and in any event no later than five working days following, the
transfer of your registration;
1.2 a second payment of € 500,000 (five hundred thousand euro) payable by EAG to the
Club on the earlier of (i) the date of your subsequent transfer from EAG to any
subsequent club; and (ii) 31 July 2019;
1.3 a 30% share of any fee obtained by EAG for your player registration upon your transfer
to any subsequent club. It is agreed that this sum shall be calculated as a percentage
of any gross transfer fee less the sum of the two payments set out at clauses 1.1 and
1.2 above (and, for the avoidance of doubt, that no other deductions shall be
permitted from the gross transfer fee prior to the calculation of such percentage
share).
It is agreed that the Compensation Payment to be paid by EAG shall be capped at the sum
of €4,500,000 (four million five hundred thousand euros).”
6.
Equally, according to the TMS, the player was registered with the Respondent on 9 January
2019.
7.
On 12 July 2019, the Claimant lodged a claim in front of FIFA, requesting its proportion of
the solidarity contribution in connection with the transfer of the player from Sunderland
AFC to the Respondent. In particular, the Claimant requested “2.42% of any compensation
agreed upon and/or paid to the Former Club or any future payments (such as, but not limited
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
2
to, bonus payments, buy option, sell-on clauses), plus 5% interest p.a. as from the due date,
until the date of effective payment.”
8.
In its reply dated 18 September 2019, the Respondent contested that the solidarity
contribution is due since no transfer compensation was paid by the latter. The Respondent
explained that the amount of EUR 2,000,000 was a payment that the latter performed on
behalf of the player, as agreed between Sunderland AFC and Mr Didier Ndong Ibrahim in
the Settlement Agreement.
9.
On 30 September 2019, a proposal in accordance with Article 13 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber was sent
out by the FIFA Administration. The proposed sum due by the Respondent amounted EUR
48,490, i.e. 48.49% of the due solidarity contribution.
10.
On 14 October 2014, the Respondent rejected the proposal made by the FIFA
Administration, referring to its reply dated 18 September 2019.
11.
On 15 October 2019, the Claimant also rejected the proposal made by the FIFA
Administration. The Claimant agreed with the percentage applied, nonetheless, it rejects
the proposed amount. In this respect, the Claimant requested to consider a sell-on fee
triggered by the transfer from the Respondent to Dijon FCO.
II.
Cons iderations of the S ingle Judge of the s ub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the DRC (hereinafter also referred to
as: Single Judge) analysed whether he was competent to deal with the case at hand. Taking
into account the wording of art. 21 of the 2019 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules), the aforementioned edition of the Procedural Rules is
applicable to the matter at hand.
2.
Subsequently, the Single Judge referred to art. 3 of the Procedural Rules, which states that
the Dispute Resolution Chamber shall examine its jurisdiction in light of arts 22 to 24 of the
Regulations on the Status and Transfer of Players (edition October 2019). In accordance with
art. 3 of Annexe 6 in conjunction with art. 24 par. 3 and art. 22 lit. d) of the Regulations on
the Status and Transfer of Players, the Single Judge is competent to decide on the present
dispute relating to solidarity mechanism between clubs belonging to different associations
handled through TMS.
3.
Furthermore, the Single Judge analysed which edition of the Regulations on the Status and
Transfer of Players should be applicable as to the substance of the matter. In this respect,
the Single Judge confirmed that in accordance with art. 26 par. 1 and par. 2 of said
Regulations (edition June 2018, June 2019, October 2019) and considering that the player
was registered with the Respondent on 9 January 2019, the June 2018 edition of the
Regulations on the Status and Transfer of Players (hereinafter: Regulations) is applicable to
the matter at hand as to the substance.
4.
The competence of the Single Judge and the applicable regulations having been established,
the Single Judge entered into the substance of the matter. In this respect, the Single Judge
started by acknowledging all the above-mentioned facts as well as the arguments and the
documentation submitted by the parties. However, the Single Judge emphasised that in the
following considerations he will refer only to the facts, arguments and documentary
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
3
evidence, which he considered pertinent for the assessment of the matter at hand. In
particular, the Single Judge recalled that in accordance with art. 6 par. 3 of Annexe 3 of the
Regulations, FIFA may use, within the scope of proceedings pertaining to the application of
the Regulations, any documentation or evidence generated or contained in the Transfer
Matching System (TMS).
5.
The Single Judge started by acknowledging that the Claimant is requesting the payment of
“2.42% 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%
interest p.a. as from the due date, until the date of effective payment”, from the
Respondent as solidarity contribution in connection with the international transfer of the
professional player, Didier Ndong Ibrahim, from Sunderland AFC.
6.
Moreover, the Single Judge duly noted that, according to the relevant agreement dated 2
January 2019, the player was transferred from Sunderland AFC to the Respondent for the
amount of EUR 2,000,000, payable as follows:
- EUR 1,500,000 “as soon as practicable, and in any event no later than five working days
following, the transfer of your registration”;
- EUR 500,000 “on the earlier of (i) the date of your subsequent transfer from EAG to any
subsequent club; and (ii) 31 July 2019”.
7.
Furthermore, the Single Judge noted that the agreement foresaw the compensation for the
transfer as follows: “30% share of any fee obtained by EAG for your player registration upon
your transfer to any subsequent club. It is agreed that this sum shall be calculated as a
percentage of any gross transfer fee less the sum of the two payments set out at clauses 1.1
and 1.2 above (and, for the avoidance of doubt, that no other deductions shall be permitted
from the gross transfer fee prior to the calculation of such percentage share).”
8.
In continuation, the Single Judge took note that the Respondent, for its part, contested the
substance of the claim, as it deemed that no transfer compensation was paid. The
Respondent explained that the amount of EUR 2,000,000 was a payment that the latter
performed on behalf of the player, as agreed between Sunderland AFC and Mr Didier Ndong
Ibrahim in the Settlement Agreement.
9.
Therefore, the Single Judge concluded that the underlying issue in the present matter was
to establish whether the ultimate payment of EUR 2,000,000, constituted a “compensation”
for the purposes of the solidarity mechanism system.
10.
In this regard, the Single Judge emphasised that, as established in art. 21 in combination
with Annexe 5 of the Regulations, if a professional moves during the course of a contract,
5% of any compensation, not including training compensation paid to his former club, shall
be deducted from the total amount of this compensation and to be distributed by the new
club as solidarity contribution to the club(s) involved in the training and education of the
player in proportion to the number of years the player has been registered with the relevant
clubs between the sporting seasons of his 12th and 23rd birthday.
11.
In view of the above, the Single Judge wished to emphasise that the reality and the
substance of the transaction should prevail on discussions about forms or schemes of
transfers.
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
4
12.
Moreover, the Single Judge thought important to bear in mind, that, although formally
speaking the player is bound to perform the payment for the early termination of the
contract, i.c. as agreed upon in the Settlement Agreement, in reality most of the times, if
not always, the amount is, as a matter of fact, not payable by a physical person. In this
regard, the Single Judge referred to the pertinent Settlement Agreement, which stipulated
that the player had to pay the amount of EUR 4,000,000.
13.
Considering the facts of the current case, the Single Judge highlighted that the Respondent
explicitly agreed upon a variation of the Settlement Agreement between the player and
Sunderland AFC, renegotiating the transfer amount through the Addendum of the
Settlement Agreement.
14.
Consequently, and in view of the above paragraphs, the Single Judge decided that the
execution of the Addendum has to be considered a compensation in the sense of art. 1 of
Annexe 5 of the Regulations. This is also in line with the spirit and the ratio of the
Regulations, which basically provide that training clubs are entitled to a share of the
solidarity contribution for any compensation paid by the new club to the former club.
Therefore, the Single Judge concluded that the Respondent has to pay solidarity
contribution to the Claimant, basing the compensation on the Addendum of the Settlement
Agreement.
15.
In this context, the Single Judge acknowledged that the Claimant also requested to consider
a sell-on fee triggered by an alleged transfer from the Respondent to Dijon FCO.
16.
Bearing in mind art. 12 par. 3 of the Procedural Rules, in accordance with which any party
claiming a right on the basis of an alleged fact shall carry the burden of proof, the Single
Judge decided that the Claimant did not provide sufficient evidence with regard to alleged
transfer. In particular, the Claimant did not provide satisfying information that the involved
clubs agreed upon a transfer fee, information which is moreover not available in the TMS,
due to the fact that said alleged transfer was a domestic transfer between two French clubs.
17.
In this regard, having confirmed the above-mentioned obligation incumbent on the
Respondent, the Single Judge went on to establish the proper calculation of the relevant
proportion of the solidarity contribution due to the Claimant, basing the compensation on
the amount of EUR 2,000,000.
18.
Having said that, the Single Judge recalled that, according to the player passport issued by
the Federation Gabonaise de Football, the Claimant was involved in the training and
education of the player.
19.
On account of the above, the Single Judge decided that, in accordance with art. 21 in
combination with Annexe 5 of the Regulations, the Respondent must pay the relevant
proportion of the solidarity contribution to the Claimant.
20.
Having established the above, the Single Judge referred to art. 1 of Annexe 5 of the
Regulations, which provides the figures for the distribution of the solidarity contribution,
according to the period of time during which the player was registered with the relevant
club.
21.
In this respect, the Single Judge recalled that, according to the player passport issued by
Federation Gabonaise de Football, the player, born on 17 June 1994, was registered with
the Claimant as from 28 January 2006 until 4 September 2012.
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
5
22.
On account of the above and in accordance with art. 1 of Annexe 5 of the Regulations, the
Single Judge considered that the Claimant is, thus, entitled to receive solidarity contribution
for the period as from 28 January 2006 until 4 September 2012, i.e. during 185 days of the
season of the player’s 12th birthday, during 365 days of the seasons of the player’s 13th - 18th
birthday and during 35 days of the season of the player’s 19th birthday. In terms of the
percentage of the 5% solidarity contribution, the Single Judge calculated that, on a pro rata
basis, this corresponds to 48.49% of the 5% of the total transfer compensation.
23.
Therefore, the Single Judge concluded that the Claimant is entitled to receive EUR 48,490,
plus 5% interest p.a. as of the due dates, as solidarity contribution in relation to the transfer
of the player from Sunderland AFC to the Respondent.
24.
Furthermore, and taking into consideration both the claim of the Claimant as well as art. 2
par. 1 of Annexe 5 of the Regulations, the Single Judge decided that the Respondent has to
pay, in conformity with the longstanding jurisdiction, interest at the rate of 5% as follows:
a. on the amount of EUR 36,247.50 as of 13 February 2019;
b. on the amount of EUR 12,082.50 as of 30 August 2019.
25.
On account of the above, in accordance with art. 21 in combination with Annexe 5 of the
Regulations, the Single Judge decided that the Respondent is liable to pay to the Claimant
the amount of EUR 48,490, plus 5% interest p.a. as of the abovementioned due dates, as
solidarity contribution for the player, Didier Ndong Ibrahim.
26.
Furthermore, taking into account the consideration under number II./3. above, the Single
Judge referred to par. 1 and 2 of art. 24bis of the Regulations, which stipulate that, with its
decision, the pertinent FIFA deciding body shall also rule on the consequences deriving from
the failure of the concerned party to pay the relevant amounts of outstanding remuneration
and/or compensation in due time.
27.
In this regard, the Chamber established that, in virtue of the aforementioned provision, it
has competence to impose a sanction on the club. More in particular, the Single Judge
pointed out that, against clubs, the sanction shall consist in a ban 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.
28.
Therefore, bearing in mind the above, the Single Judge decided that, in the event that the
club does not pay the amount due to the player within 45 days as from the moment in which
the player, following the notification of the present decision, communicates the relevant
bank details to the club, a ban from registering any new players, either nationally or
internationally, for the maximum duration of three entire and consecutive registration
periods shall become effective on the club in accordance with art. 24bis par. 2 and 4 of the
Regulations.
29.
Finally, the Single Judge recalled that the above-mentioned sanction will be lifted
immediately and prior to its complete serving upon payment of the due amounts, in
accordance with art. 24bis par. 3 of the Regulations.
30.
Lastly, the Single Judge referred to art. 25 par. 2 of the Regulations in combination with art.
18 par. 1 of the Procedural Rules, according to which, in proceedings before the DRC relating
to disputes regarding training compensation and the solidarity mechanism, costs in the
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
6
maximum amount of CHF 25,000 are levied. It is further stipulated that the costs are to be
borne in consideration of the parties’ degree of success in the proceedings and, in
accordance with Annexe A of the Procedural Rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
31.
In respect of the above, the Single Judge held that the amount to be taken into
consideration in the present proceedings is EUR 48,490, related to the claim of the Claimant.
Consequently, the Single Judge concluded that the maximum amount of costs of the
proceedings corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).
32.
As a result, considering the specificities of the claim, the Single Judge determined the final
costs of the current proceedings to the amount of CHF 5,000, which shall be paid by both of
the parties as follows: the amount of CHF 2,000 by the Claimant and the amount of CHF
3,000 by the Respondent to FIFA.
II.
Decis ion of the S ingle Judge of the s ub-com m ittee of the DRC
1.
The claim of the Claimant, CMS, is accepted.
2.
The Respondent, EA Guingamp, has to pay to the Claimant the amount of EUR 48,330, plus
5% interest p.a. until the date of effective payment as follows:
a. 5% p.a. as of 13 February 2019 on the amount of EUR 36,247.50;
b. 5% p.a. as of 30 August 2019 on the amount of EUR 12,082.50.
3.
The Claimant is directed to inform the Respondent, immediately and directly, of the
relevant bank account to which the Respondent must pay the amount mentioned under
point 1. above.
4.
The Respondent shall provide evidence of payment of the due amount in accordance with
point 1. above to FIFA to the e-mail address [email protected], duly translated, if need be,
into one of the official FIFA languages (English, French, German, Spanish).
5.
In the event that the amount due, plus interest in accordance with point 1. above is not
paid by the Respondent w ithin 45 day s as from the notification by the Claimant of the
relevant bank details to the Respondent, 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 (cf. art.
24bis of the Regulations on the Status and Transfer of Players).
6.
The ban mentioned in point 5. above will be lifted immediately and prior to its complete
serving, once the due amount is paid.
7.
In the event that the aforementioned sum plus interest 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 FIFA’s Disciplinary Committee for consideration and a formal
decision.
8.
The final costs of the proceedings in the amount of CHF 5,000 are to be paid, w ithin 45
day s of notification of the present decision, as follows:
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
7
a. The amount of CHF 2,000 has to be paid by the Claimant.
b. The amount of CHF 3,000 has to be paid by the Respondent.
c. The mentioned amounts in 8.a. and 8.b. have to be paid to FIFA to the following
bank account with reference to case no. TMS 4440:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
9.
In the event that the aforementioned amount of costs is not paid within the stated time
limit, the present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
for consideration and a formal decision.
Note related to the publication:
*****
The FIFA administration may publish decisions issued by the Players’ Status Committee or the DRC.
Where such decisions contain confidential information, 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 Rules Governing the Procedures of the Players’ Status
Committee and the Dispute Resolution Chamber).
Note related to the appeal procedure:
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against before the
Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the CAS directly
within 21 days of receipt of notification of this decision and shall contain all the elements in
accordance with point 2 of the directives issued by the CAS. Within another 10 days following the
expiry of the time limit for filing the statement of appeal, the appellant shall file a brief stating
the facts and legal arguments giving rise to the appeal with the CAS.
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport
Avenue de Beaumont 2
1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Single Judge of the
sub-committee of the DRC
_________________________
Emilio García Silvero
Chief Legal & Compliance Officer
Solidarity contribution for the player Didier NDONG IBRAHIM
(CMS, Gabon / EA Guingamp, France)
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