Solidarity Contribution
Texto da decisão
REF 6329/eam
Decision of the
Single Judge the sub-committee of the Dispute
Resolution Chamber (DRC)
Passed on 6 August 2020,
regarding solidarity contribution for the transfer the player Ante Rebić
BY:
Roy Vermeer (the Netherlands), Single Judge of the sub-committee of the DRC
CLAIMANT:
NK IMOTSKI, Croatia
Represented by Mr. Jan Schweele
RESPONDENT:
AC MILAN, Italy
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I. FACTS OF THE CASE
1.
According to the player passport issued by the Croatian Football Federation, the player, Ante
Rebić (hereinafter: Rebić), born on 21 September 1993, was registered with the following
Croatian clubs:
12th Birthday FC Vinjani (Donji) 01-07-2005 to 31-06-2006
Amateur
Type of
registration
Permanent
13th Birthday FC Vinjani (Donji) 01-07-2006 to 31-06-2007
Amateur
Permanent
14th Birthday FC Vinjani (Donji) 01-07-2007 to 30-06-2008
Amateur
Permanent
FC Vinjani (Donji) 01-07-2008 to 20-08-2008
Amateur
Permanent
Amateur
Amateur
Amateur
Permanent
Permanent
Season
15th Birthday
Club
Dates
Status
FC Imotski
FC Imotski
FC Imotski
27-08-2008 to 30-06-2009
01-07-2009 to 30-06-2010
01-07-2010 to 14-07-2010
RNK Split
18-08-2010 to 30-06-2011 Professional
18th Birthday
RNK Split
01-07-2011 to 30-06-2012 Professional
Permanent
19th Birthday
RNK Split
01-07-2012 to 30-06-2013 Professional
Permanent
20th Birthday
RNK Split
01-07-2013 to 20-08-2013 Professional
Permanent
16th Birthday
17th Birthday
Permanent
2.
The football season in Croatia runs as follows:
a. until 1 July 2005, from 1 August to 31 July of the following year;
b. after 1 July 2005, from 1 July to 30 June of the following year.
3.
As shown above, Rebić was registered with the club NK Imotski (hereinafter: the Claimant)
from 27 August 2008 to 14 July 2010.
4.
According to the information available on the Transfer Matching System (TMS), on 10 January
2018, following the execution of an employment agreement between the German club,
Eintracht Frankfurt (hereinafter: EF) and Rebić, the latter was permanently registered with EF.
5.
According to the information available on TMS, on 1 September 2019, EF entered two transfer
instructions in said system, both having the Italian club, AC Milan (hereinafter: the Respondent
or ACM) as counter-instructing club:
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a. the first one, at 10h47 Swiss time, to engage the Portuguese player André Miguel
Valente da Silva (hereinafter: Silva) from ACM on loan. Such instruction read “engage
free of payment on loan international”;
b. the second one, at 11h11 Swiss time, to release Rebić to ACM on loan. Such instruction
read “release free of payment on loan international”;
6.
On 2 September 2019, EF, Rebić and the Respondent executed a free loan transfer agreement,
valid for two seasons, by means of which the services of Rebić were temporarily transferred
from EF to the Respondent (hereinafter: the First Loan).
7.
On the same day, EF, Silva and the Respondent executed a free loan transfer agreement, valid
for two seasons, by means of which the services of Silva were temporarily transferred from
the Respondent to EF (hereinafter: the Second Loan).
8.
According to the information available on TMS, on 2 September 2019 the following events
took place. All hours shown below are in Swiss time:
Time Player
16h35 Rebić
18h00 Silva
18h01 Rebić
Active Subject
ACM
EF
EF
18h04
Silva
ACM
18h07
Rebić
ACM
19h39
Silva
n/a
22h05
Rebić
n/a
Event
Entered a new transfer instruction to engage Rebić.
Confirmed its own transfer instruction.
Confirmed its own transfer instruction.
Entered a new transfer instruction to release Silva, which
was paired by TMS with EF’s matching instruction.
Confirmed its own transfer instruction, which was paired
by TMS with EF’s matching instruction.
Silva was registered with the Deutscher Fussball-Bund
(DFB).
Rebić was registered with the Federazione Italiana
Giuoco Calcio (FIGC).
II. PROCEEDINGS BEFORE FIFA
a. Claim of the Claimant
9.
On 7 July 2020, the Claimant filed the claim at hand against the Respondent.
10. The Claimant submitted that the transfers of Rebić and Silva between ACM and EF correspond
to an exchange of players. Hence, it argued that it is entitled to receive solidarity contribution
from the Respondent.
11. In particular, the Claimant argued that the two transfers at stake are “not a common practice
in the football world when we refer to loan agreements, since these are made for shorter
periods of time (half of a season or a full season) and normally involve young players eager to
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be fielded in order to develop themselves or, when not involving young players, they involve,
at least, a compensation for the temporary transfer”.
12. The Claimant filed four news articles in support of the alleged exchange of players, quoting
the Football Director and Head Coach of EF respectively as follows: “If everything works,
tomorrow Silva will wear our shirt and Rebić will be in Milan” and “All involved parties are
basically happy. We followed Rebić’s wish to transfer to a big club. It was a good option that
- with Silva - there was a player at Milan who we had been very interested in for weeks but
who was too expensive”.
13. The Claimant further submitted, with regards to Silva, that he was involved in previous
valuable transfers, and therefore that it would not make sense for him to be loaned for free
to EF. The Claimant is of the position that both Rebić and Silva are valuable players.
14. Additionally, the Claimant argued that according to the FIFA Dispute Resolution Chamber
jurisprudence, solidarity contribution must be calculated and distributed in case of temporary
transfers where the compensation is not a direct financial payment but an exchange of
players, which will always have a financial value. In this respect, the Claimant deemed that
the First Loan and the Second Loan should be seen “necessarily as one”, since they “have
been concluded between the same parties, for the same period of time, registered on the
same day, in regard to high valuable players”.
15. With regards to the calculation of the amount corresponding to the transfer, the Claimant
reverted to FIFA and CAS jurisprudence, in particular CAS 2016/A/4821, and deemed that
both players’ market value was EUR 40,000,000. Accordingly, it calculated the transfer
compensation as follows (quoted verbatim):
“40,000,000.00 € / 4,5 (average of the players contracts) x 2 (duration of the loan) - 40% =
10,666,666.67 €”
16. The Claimant requested the following relief:
“1. To sentence the Respondent to inform the Claimant about any compensation paid to the
Former Club or any future payments (such as sell-on clauses, bonus payments, exchange of
players) in respect to the above-mentioned transfer,
2. to sentence the Respondent to inform the Claimant about all contractual clauses with
relevance regarding the payment of solidarity contribution,
3. to sentence the Respondent to pay the Claimant solidarity contribution in the amount of
0.73 % of this compensation plus 5% interests p.a. as of the due dates.”
b. Reply of the Respondent
17. The Respondent, for its part, rejected the Claimant’s claim in a short submission, arguing that
the transfer of Rebić to EF was free of payment and therefore no solidarity contribution was
due to the Claimant.
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III. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER
a. Competence and applicable legal framework
18. First of all, the Single Judge of the sub-committee of the DRC (hereinafter: the Singe Judge)
analysed whether he was competent to deal with the matter at stake. In this respect, he took
note that the present matter was presented to FIFA on 7 July 2020 and submitted for his
consideration on 6 August 2020. Taking into account the wording of art. 21 of the June 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 (cf. article 21 of the Procedural
Rules).
19. 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
FIFA 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 Single Judge is competent to decide on the present
dispute relating to solidarity contribution between clubs belonging to different associations
handled through TMS. Such competence is not disputed by the parties.
20. Furthermore, and taking into consideration that Rebić was registered with the Respondent on
2 September 2019, the Single Judge analysed which regulations should be applicable as to
the substance of the matter. In this respect, he confirmed that, in accordance with art. 26
par. 1 and 2 of the Regulations on the Status and Transfer of Players (edition June 2020), the
June 2019 edition of the Regulations on the Status and Transfer of Players (hereinafter:
Regulations) is applicable to the matter at hand as to the substance.
21. The competence of the Single Judge and the applicable regulations having been established,
the Single Judge entered into the substance of the matter. The Single Judge started by
acknowledging the above-mentioned facts of the case as well as the documentation on file.
However, the Single Judge emphasized that in the following considerations he will refer only
to the facts, arguments and documentary evidence which he considered pertinent for the
assessment of the matter at hand.
b. Burden of proof
22. The Single Judge recalled the basic principle of burden of proof, as stipulated in art. 12 par.
3 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 Single Judge stressed the
wording of art. 12 par. 4 of the Procedural Rules, pursuant to which it may consider evidence
not filed by the parties.
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23. In this respect, the Single Judge also recalled that in accordance with art. 6 par. 3 of Annexe
3 of the Regulations, FIFA’s judicial bodies may use, within the scope of proceedings
pertaining to the application of the Regulations, any documentation or evidence generated
or contained in TMS.
c. Merits of the Dispute
24. First of all, the Single Judge noted that the Claimant lodged a claim against the Respondent
for payment of the relevant proportion of solidarity contribution in connection with the
transfer of Rebić from EF to the Respondent. In particular, the Single Judge noted that the
Claimant alleged that the transfer of said player from EF to the Respondent was connected
to the transfer of Silva from the Respondent to EF. According to the Claimant, such
constellation constitutes an exchange of players, thereby referring to jurisprudence of the
DRC according to which an exchange of players has financial content.
25. Likewise, the Single Judge acknowledged that the Claimant held that, therefore, the relevant
value of the transfer of Rebić to the Respondent shall be calculated considering the market
value of the players involved.
26. The Single Judge further noticed that the Claimant, in support of its position, referred to mass
media articles, which, supposedly, referred to the transfer of Rebić from EF to ACM being
connected to the transfer of Silva in the opposite direction.
27. In continuation, the Single Judge took due note that the Respondent rejected the
argumentation brought forward by the Claimant, and submitted that the transfer of Rebić
from EF to ACM was concluded free of charge.
28. In light of the foregoing, the Single Judge deemed that he had to establish as to whether an
obligation to distribute a proportion of the solidarity contribution had arisen out of the
transfer of Rebić from EF to the Respondent. More in particular, the Single Judge highlighted
that the underlying issue in this dispute, considering the diverging position of the parties, was
to determine whether the transfer of Rebić from EF to the Respondent was a free loan transfer
or not. The Single Judge also underlined that, subsequently, if it was found that such transfer
was not concluded free of charge, it would be necessary to determine the consequences visà-vis the obligation of payment of the solidarity contribution in accordance with art. 21 and
Annexe 5 of the Regulations.
29. In this respect, the Single Judge made reference to art. 21 of the Regulations, according to
which any club that has contributed to the education and training of a player shall receive a
proportion of the compensation paid to the player’s former club. Consequently, the Single
Judge went on to examine as to whether compensation was in fact paid in connection with
the transfer of Rebić from his former club, EF, to the Respondent.
30. In this sense, the Single Judge firstly recalled the aforementioned principle of the burden of
proof, as established in art. 12 par. 3 of the Procedural Rules, according to which a party
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claiming a right on the basis of an alleged fact shall carry the respective burden of proof.
Given the fact that the Claimant argued that the transfers of Rebić from EF to ACM, and of
Silva from ACM to EF, constituted an exchange of players, the Single Judge was firm to decide
that it was incumbent on the Claimant to prove such allegation.
31. Bearing in mind the foregoing considerations, the Single Judge went on to examine the
documentation available to him. In this respect, the Single Judge stressed that, according to
the information and documentation entered in TMS on the occasion of the transfer of Rebić
from EF to the Respondent, the latter engaged Rebić on a loan transfer free of charge.
32. Likewise, the Single Judge noted that the Respondent uploaded in TMS the loan agreement
signed with EF regarding the loan transfer of Silva, which was also free of charge.
33. Accordingly, the Single Judge emphasized that according to the documentation available in
TMS, the transfers of the players concerned, Rebić and Silva, were not concluded on the basis
of the same contract, but in fact by means of two separate agreements. The Single Judge
further observed that such agreements - in spite of having been concluded on the same day,
leading to two concomitant transfer instructions in TMS - neither refer to each other, nor
refer to any other footballer with the exception of the one being transferred. In other words,
the Single Judge could determine from the cited documentation that the First Loan only refers
to Rebić and the Second Loan only refers to Silva.
34. Accordingly, the Single Judge determined that, prima facie, the two transfers must be
analysed separately, since the mere fact that the same clubs were involved in two different
transfers for two different players on the same date does not necessarily mean that such clubs
engaged in an exchange of players.
35. Notwithstanding the above, the Single Judge recalled that, as a general principle, any transfer
agreement – including a loan transfer agreement – represents a bilateral agreement, and
consequently, a mutual exchange of obligations between the parties. To this extent, the Single
Judge referred to the longstanding and well-established practice of the DRC and the Court
of Arbitration for Sport, which confirm such assessment.
36. In continuation, the Single Judge acknowledged that a transfer contract, which deals with a
mutual exchange of obligations between the contractual parties involved as outlined above,
can, inter alia, involve the payment of a fee or indeed be in the form of an exchange of
players.
37. However, the Single Judge considered that, in the matter at hand and based on the foregoing
considerations, no such mutual exchange of obligations with respect to Rebić had been
agreed upon by and between EF and the Respondent.
38. What is more, the Single Judge considered that the mass media articles presented by the
Claimant cannot be considered sufficient evidence corroborating the Claimant’s allegations.
To this extent, the Single Judge found the documentation filed by the Claimant to be merely
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speculative since, conversely to the arguments raised by the Claimant, neither of the parties’
representatives admitted in the cited media articles that the players Rebić and Silva were
traded one for the other.
39. In conclusion, the Single Judge decided that while it seems at first sight that the transfers of
Rebić and Silva are connected, the Claimant has not sufficiently discharged its burden of proof
to demonstrate, to a comfortable satisfaction degree, that a mutual exchange of obligations
with respect to Rebić was agreed upon by and between EF and the Respondent.
40. The Single Judge hence concluded, in the absence of evidence to the contrary, that the
transfers of the players Rebić and Silva were two separate transfers and, thus, that he had no
alternative but to reject the Claimant’s allegation that an exchange of players took place.
41. Consequently, and with reference to art. 21 of the Regulations, the Single Judge held that
there was no basis for the Claimant’s claim for solidarity contribution against the Respondent
in relation to Rebić, and, therefore, decided to reject the Claimant’s claim in its entirety.
d. Costs
42. Lastly, the Single Judge referred to the temporary amendments outlined in art. 18 par. 2 lit.
ii) of the Procedural Rules, which entered in force in 10 June 2020, according to which no
procedural costs shall be levied for any claim lodged between 10 June 2020 and 31 December
2020 (both inclusive), and determined given that the claim at hand was lodged on 7 July
2020, the decision shall be rendered free of costs.
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IV. DECISION OF THE DISPUTE RESOLUTION CHAMBER
1. The claim of the Claimant, NK IMOTSKI, is rejected.
2. The decision is rendered free of costs (cf. art. 18 para. 1 num. i) of the Procedural Rules.
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).
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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