Solidarity Contribution
Texto da decisão
Decis ion of the
Dis pute Res olution Cham ber
pas s ed on 2 July 2020,
regarding s olidarity contribution for the trans fer the play er Gelm in Jav ier Riv as
Boada
COMPOS ITION:
Clifford J. Hendel (USA), Deputy Chairman
Michelle Colucci (Italy), member
Todd Durbin (USA), member
CLAIMANT:
Atlético Independiente Sucre, Venezuela
RES PONDENT:
Al Sharjah FC, United Arab Emirates
TMS 3655
I.
FACTS OF THE CAS E
1.
According to the player passport issued by the Federación Venezolana de Fútbol (FVF),
the player, Gelmin Javier Rivas Boada (hereinafter: the player), born on 23 March 1989,
was registered with its affiliated club, Atletico Independiente Sucre (hereinafter:
Claimant) as from 1 January 2005 until 31 December 2005
2.
The sporting season in Venezuela runs as from 1 January until 31 December.
3.
According to the information available in the Transfer Matching System (TMS), on 17
July 2016, the Saudi Arabian club, Al Ittihad Club, concluded a transfer agreement with
the Emirati club, Al Sharjah FC (hereinafter: Respondent), for the transfer of the player
to the Respondent for a transfer fee in the amount of USD 1,600,000 payable by 26 July
2016.
4.
According to the information available in the TMS, the player was registered with the
Respondent on 30 August 2016.
5.
By letter dated 26 November 2016, sent on 13 December 2016, the Claimant informed
FIFA that on 30 May 2016 it requested in writing the solidarity contribution from the
Respondent, but that the Respondent had not paid the corresponding solidarity
contribution.
6.
In the correspondence sent on 13 December 2016, the Claimant further held that, “in
light of the situation, we are obligated to turn to [FIFA] to request to activate via FIFA,
the amount that corresponds to us”.
7.
By letter dated 1 April 2017, sent on 13 November 2017 and received on 15 November
2017, the Claimant contacted FIFA holding that the player was transferred from Al
Ittihad to the Respondent. The Claimant further requested FIFA “to activate the [DRC]
to carry out the [Solidarity Mechanism] procedure” with regard to the transfer of the
player from Al Ittihad to the Respondent. Finally, in said correspondence, the Claimant
further provided FIFA with a player passport.
8.
On 30 January 2018, FIFA informed the Claimant that it acknowledged receipt of its
correspondence received on 15 November 2017. In this context, FIFA informed the
Claimant that, since October 2015, all claims for solidarity mechanism have to be lodged
via the TMS.
9.
On 2 March 2018, the FVF informed the Claimant, inter alia, that “only professional clubs
can be incorporated in the TMS”.
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10.
By letter dated 30 November 2016, but sent on 10 March 2018, the Claimant informed
the FVF in writing that it was “undergoing the procedure in front of FIFA and the [FVF]
regarding the payment that corresponds to us for the solidarity mechanism for the
transfer of the player […] on 30 July 2016 […] from Al Ittihad to [the Respondent] in
accordance with the regulations of FIFA […] At this moment we are claiming an amount
detailed as follows: USD 20,000 corresponding to the year 2005 and USD 20,000
corresponding to the year 2006, for a total amount of USD 40,000”
11.
By letter dated 5 April 2018, but sent on 10 April 2018, the Claimant requested the FVF
in writing to “carry out the procedure via TMS in order to obtain the solidarity
mechanism that corresponds to us for the transfer of the player […] from Deportivo
Tachira FC to Al Ittihad”. In said letter, the Claimant further held that “on 12 February
2016” it contacted the FVF regarding said procedure. However, as per the Claimant, the
FVF demanded that the Claimant comply with “a series of requisites”, which, as per the
Claimant, it complied with.
12.
On 4 June 2018, in response the Claimant’s request to the FVF dated 5 April 2018, FVF
held that in case the Claimant “does not possess an international bank account, [the
FVF] will have to receive the funds in its account and later transfer it to [the Claimant’s]
account in local currency, except if [the Claimant] opens an international bank account
in its name on which it could receive said amount”. The FVF further informed the
Claimant that it would have to “deduct 10% of the income for the corresponding
solidarity rights regarding [the player], as administrative costs. However, in case [the
Claimant] opens an international bank account, and adapts [the claim] to [FIFA’s]
procedural rules we will attach said documentation [to the TMS] free of costs”.
13.
On 14 December 2018, the FVF uploaded a claim, on behalf of the Claimant, to the TMS
in front of FIFA for solidarity contribution regarding the transfer of the player from Al
Ittihad to the Respondent in August 2016. In said claim, the Claimant requested 1% of
the transfer amount.
14.
In its claim, the Claimant firstly held that FIFA never responded to its correspondence of
13 December 2016.
15.
In continuation, the Claimant held that it sent another correspondence to FIFA on 13
November 2017, to which FIFA answered on 30 January 2018 informing it that all claims
had to be submitted via TMS.
16.
In this context, the Claimant held that it contacted the FVF on “numerous occasions” in
order for it to carry out the procedure via TMS. However, according to the Claimant, the
FVF refused to “undergo this procedure and refused to add the club to TMS”, informing
it that “only professional clubs can be incorporated in the TMS”.
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TMS 3655
17.
The Claimant further referred to the FVF correspondence dated 4 June 2018,
highlighting that the FVF would deduct 10% of the income corresponding to the
solidarity contribution.
18.
As per the Claimant, “for these reasons, [it] was not able to undergo the procedure
corresponding to obtaining the solidarity mechanism via TMS. However, [it] had already
turned to FIFA in order to commence obtaining the solidarity mechanism”.
19.
Despite having been invited to do so, the Respondent failed to reply to the Claimant’s
claim
II. CONS IDERATIONS OF THE DIS PUTE RES OLUTION CHAMBER
20.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as Chamber or
DRC) analysed whether it was competent to deal with the case at hand. Taking into
account the wording of art. 21 of the 2020 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.
21.
Subsequently, the Chamber 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 June 2020). 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 DRC is competent to decide on
the present dispute relating to solidarity mechanism between clubs belonging to
different associations handled through TMS.
22. Furthermore, 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 par. 2 of the Regulations on the Status and Transfer of players (editions 2016,
2018, 2019 and 2020), and considering that the player was registered with the
Respondent as a professional on 30 August 2016, the Regulations for the Status and
Transfer of Players (edition 2016, hereinafter: Regulations) is applicable to the matter at
hand as to the substance.
23. Having established the above, the Chamber unanimously stated that first and foremost,
it is crucial to clarify the date of the submission of the formal petition to FIFA, in order
to establish whether the claim was brought to FIFA in due time. In this context, the
Chamber referred to art. 25 par. 5 of the Regulations, which, in completion to the
general procedural terms outlined in the Procedural Rules, clearly establishes that the
decision-making bodies of FIFA shall not hear any dispute if more than two years have
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TMS 3655
elapsed since the event giving rise to the dispute arose and that the application of this
time limit shall be examined ex officio in each individual case.
24.
In this context, the DRC duly noted that the player was registered with the Respondent
on 30 August 2016. Thus, the Chamber firstly emphasized that the final deadline for the
Claimant to lodge a claim without it being time-barred would have been 30 September
2018. Consequently, the Chamber unanimously agreed that it firstly had to determine
whether the Claimant had complied with the obligation outlined in art. 25 par. 5 of the
Regulations by submitting its official statement of claim by 30 September 2018 at latest.
25. Along these lines, the DRC analysed the correspondence dated 26 November 2016 and
sent via regular post on 13 December 2016. In this context, the DRC firstly noted that as
per 1 October 2015, all claims related to solidarity contribution and training
compensation had to be submitted via TMS. Thus, the Chamber firstly determined that
by sending the correspondence via regular post on 13 December 2016, the Claimant had
not complied with the official procedure with regard to claims for solidarity
contribution.
26. At this point, and as regards the clubs’ general obligation as per 1 October 2015 to lodge
claims for solidarity contribution and training compensation via the TMS, the DRC wished
to point out that FIFA had duly informed its members of said requisition by means of
Circular 1500 dated 4 September 2015. In this regard, the Chamber further highlighted
that as per the last paragraph of said circular, FIFA requested its members to ensure that
“all of your affiliated clubs are informed accordingly without delay”.
27. Consequently, the DRC agreed that all national associations, including the FVF, carry the
responsibility of informing their respective affiliated clubs of any and all regulatory
changes. Likewise, the Chamber was of the firm opinion that any club wishing to obtain
their rights deriving from the solidarity mechanism, such as the Claimant, carry the
responsibility to do so in accordance with FIFA’s regulations, including the obligation to
submit all claims via the TMS as per the contents of art. 1 par. 1 of Annexe 6 of the
Regulations.
28. Next, the Chamber recalled that by means of the correspondence sent via regular post
on 13 December 2016, the Claimant stated that “we are obligated to turn to [FIFA] to
request to activate via FIFA, the amount that corresponds to us”. Having said this, the
members of the Chamber concluded that said correspondence did not include a clear
motion of claim and could therefore not be considered as a submission of a formal
complaint in the sense of art. 9 of the Procedural Rules.
29.
In continuation, the Chamber took into account that by letter received on 15 November
2017, by means of which the Claimant again contacted FIFA requesting it “to activate
the [DRC] to carry out the [Solidarity Mechanism] procedure”.
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30.
Referring to the letter of the Claimant received on 15 November 2017, here too the
Chamber agreed that it did not include a clear motion of claim and could therefore not
be considered as a submission of a formal complaint in the sense of art. 9 of the
Procedural Rules.
31.
Finally, the DRC noted that on 14 December 2018, the FVF uploaded a claim, on behalf
of the Claimant, to the TMS in front of FIFA for solidarity contribution regarding the
transfer of the player from Al Ittihad to the Respondent in August 2016. In this sense,
although the claim complied with the formal conditions stipulated in art. 9 of the
Procedural Rules and was uploaded correctly via the TMS, the Chamber emphasized that
said claim was submitted after the regulatory deadline of 30 September 2018.
32.
Having said this, the DRC took into account the Claimant’s arguments, who explained
for the first time to FIFA, that it contacted the FVF on “numerous occasions” in order for
it to carry out the procedure via TMS. The Chamber further recalled that according to
the Claimant, the FVF refused to “undergo this procedure and refused to add the club
to TMS”, and that the FVF would even deduct 10% of the income corresponding to the
solidarity contribution.
33.
In this context, the members agreed that the Claimant did not provide any clear evidence
demonstrating that the FVF had refused to upload a claim to the TMS – as per art. 1 par.
1 of Annexe 6 of the Regulations - for solidarity contribution regarding the transfer of
the player from Al Ittihad to the Respondent in August 2016 prior to its regulatory
deadline of 30 September 2018. What is more, the alleged circumstance that the FVF
had apparently refused to upload the claim of the Claimant in TMS, was only brought
forward by the Claimant for the first time in December 2018. Thus, this part of the
Claimant’s argumentation cannot be considered as a legitimate justification for the
lateness of the Claimant’s claim, in view of the lack of timely submitting any
documentary evidence confirming the circumstances as described by the Claimant.
34.
In conclusion, the Chamber concurred that the Claimant’s claim against the Respondent
for the payment of solidarity contribution was lodged in front of FIFA on 14 December
2018, while the event giving rise to the dispute arose on 30 August 2018, i.e. the date
on which the player was registered as a professional with the Respondent.
Consequently, the Chamber concluded that the Claimant had brought its claim against
the Respondent after the aforementioned two-year period of time had elapsed.
35.
In view of all the above, the Chamber found that the Claimant’s claim for the payment
of solidarity contribution must be declared barred by the statute of limitations in
application of art. 25 par. 5 of the Regulations.
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III. DECIS ION OF THE DIS PUTE RES OLUTION CHAMBER
The claim of the Claimant, Atletico Independiente Sucre, is inadmissible.
For the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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NOTE RELATED TO THE APPEAL PROCEDURE:
According to article 58 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 20 of the Procedural Rules).
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