Dispute Resolution Chamber
Texto da decisão
REF TMS 7183
Decision of the
Single Judge of the sub-committee of
the Dispute Resolution Chamber
passed on 26 February 2021
regarding solidarity contribution for the transfer of the player Marko Rog
BY:
Johan v an Gaalen (South Africa), Single Judge of the sub-committee
of the DRC
CLAIMANT:
RNK Split, Croatia
RESPONDENT:
CAGLIARI CALCIO SPA, Italy
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REF TMS 7183
I. FACTS OF THE CASE
Player:
Marko ROG
Date of birth:
19 July 1995
Player passport:
issued by the Croatian Football Federation (“HNS”) on 9 January 2017
Season
Birthday
Club(s)
Registration dates
Type
2013-2014
18th
RNK Split
Permanent
2014-2015
19th
RNK Split
2015-2016
20th
RNK Split
2015-2016
20th
2016-2017
21st
GNK Dinamo
Zagreb
GNK Dinamo
Zagreb
18.06.201430.06.2014
01.07.201430.06.2015
01.07.201501.07.2015
09.07.201530.06.2016
01.07.201629.08.2016
Sporting season:
Permanent
Permanent
Permanent
Permanent
1 July to 30 June (Croatia)
Information of the Federazione Italiana Giuoco calcio (“FIGC”) (free translation):
- Date of transfer:
According to the information provided by the FIGC on 19 November 2020, the
Italian clubs SSC Napoli (“former club”) and CAGLIARI CALCIO SPA
(“Respondent”) agreed to the loan of the player with obligation to purchase by
way of a transfer agreement dated and executed on 23 July 2019.
- Financial conditions:
Loan: EUR 2,000,000 payable on the “1st Sporting Season”;
Permanent (“Purchase obligation”):
EUR 13,000,000 payable as follows:
- EUR 6,500,000 at the start of the 2020/2021 season
- EUR 6,500,000 at the start of the 2021/2022 season
In accordance with the loan agreement:
-the obligation to buy had been set-out in the loan agreement on 23 July 2019;
-the permanent transfer of the player was to be triggered, either when 1) the
Respondent earned one point in the 2019/2020 Serie A Championship after 1
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REF TMS 7183
February 2020, or when 2) the player played in a match in the Championship
after 1 February 2020.
- Player passport:
issued by the FIGC on 23 November 2020
Season
Birthday
Club(s)
Registration dates
Type
2016-2019
21st – 23rd
SSC Napoli
2019-2020
24th
SSC Napoli
Loan /
Permanent
Permanent
2019-2020
24th
2020-2021
25th
CAGLIARI
CALCIO SPA
CAGLIARI
CALCIO SPA
01.09.201630.06.2019
03.07.201922.07.2019
23.07.201931.08.2020
01.09.2020-onwards
Claimant club:
RNK Split, Croatia
Respondent club:
CAGLIARI CALCIO SPA, Italy
Loan
Permanent
Claim and Response:
1.
On 12 November 2020, the Claimant lodged a claim for solidarity contribution against the
Respondent requesting payment of the solidarity contribution in connection with the permanent
transfer of the player from SSC Napoli to the Respondent and requested the payment of a sum
corresponding to “0.519 % 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),
or 10.383 % of the total solidarity contribution, plus 5% p.a. interest as of the due date, until
the date of effective payment”.
2.
The claim is based on the following calculation:
Age
18
19
20
Total:
Registration
with the
Claimant
18.06.2014 –
30.06.2014
(13 days)
01.07.2014 –
30.06.2015
(365 days)
01.07.2015
(1 day)
379 days
Percentage of the
Solidarity
Contribution
0.356 %
Percentage of the
Transfer Sum
10.000 %
0.500 %
0.027 %
0.001 %
10.383 %
0.519 %
0.018 %
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REF TMS 7183
3.
In particular, the Claimant referred to the August and October 2020 editions of the Regulations
on the Status and Transfer of Players (RSTP) according to which a training club is entitled to
receive (a proportion of) the 5% solidarity contribution when a professional player is transferred,
either on a definitive or loan basis, between clubs affiliated to the same association, provided
that the training club is affiliated to a different association.
4.
After having been informed by FIFA about the financial conditions of the transfer as per the
information provided by the FIGC, the Claimant amended its claim on 29 November 2020
requesting to be awarded the aforementioned percentage of solidarity applicable on the amount
of EUR 6,500,000, corresponding to the first installment of the permanent transfer fee which
became due on 1 September 2020, i.e. “when the 2020/2021 sporting season of Serie A started,
i.e. on 01.09.2020”.
5.
Specifically, the Claimant referred to the contents of the loan agreement and argued inter alia
that “The condition on which relies the obligation for the Respondent to buy the player on a
permanent basis – the first point made by the Respondent in the 2019/2020 Serie A after
01.02.2020 (…) – was triggered on 23.06.2020, when the Respondent won against SPAL with
the result of 0:1 (…)”. In this respect, the Claimant submitted an extract from the website
www.transfermarkt.com detailing the sporting results of the Respondent during the 2019-2020
Serie A season which indicated, inter alia, the latter’s win against the Italian team SPAL on 23
June 2020.
6.
On 30 November 2020, the FIFA administration submitted a proposal to the parties suggesting
that the Respondent should pay to the Claimant the sum of EUR 33,670 as solidarity
contribution, corresponding to 10.36% of the solidarity contribution on the first instalment of
EUR 6,500,000 payable by the Respondent for the permanent transfer of the player from SSC
Napoli to the Respondent, plus 5% interest p.a. as of the due date.
7.
The proposal was accepted by the Claimant and rejected by the Respondent.
8.
On 21 January 2021, the Respondent requested the Claimant’s claim to be dismissed arguing
that because of the specificities of the Italian national transfer system, which obliges the parties
in cases of purchase obligation contracts to conclude the terms of the loan, permanent and
labour contract(s) at the same time, i.e. on 23 July 2019, the date of signature of the agreement
should be the one taken into consideration when assessing the applicable version of the RSTP.
9.
In particular, the Respondent referred to and submitted the following documents:
- “Variazione di Tesseramento, i.e. the variation of the registration form”;
- “Accordo in bollo, i.e. the transaction summary”;
- “Accordo di obbligo di trasformazione della cessione temporanea in cessione definitive (art.
103, par. 3 bis NOIF), i.e. the agreement of conversion of the transfer from temporary to
permanent”;
- “Premi e/o indenizzi, i.e. the sell on fee agreement between [the Respondent] and [the former
club];
- Contratto di lavoro, i.e. the labour contract” potentially valid until 30 June 2024;
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REF TMS 7183
- “the formal authorization” dated 8 August 2019 and issued by the “Lega Nazionale
Professionisti di Serie A” by means of which the national competent league certified, upon a
compliance check of the regulatory and legislative provisions such as the “Norme Organizzative
Interne della FIGC” (“NOIF”), that the aforementioned transfer agreement made of the different
forms was valid.
10.
Bearing the above in mind, the Respondent argued that since 23 July 2019 no other documents
were signed by the relevant parties, which means that, as of said date: a. the player was
registered with the Respondent; b. all concerned parties were duly informed of the conditions
triggering the purchase obligation and their potential consequences; and c. the player was duly
informed of its potential contractual situation with Cagliari up until 30 June 2024.
11.
In addition, it held, inter alia, that the “only act that certifies and finalizes the conversion of the
status is a formal communication (…) by means of which the League merely informs the
contracting parties of the occurrence of the pre-set conditions provided for by the contract and
the consequent changing of the status”, in casu said letter being dated 1 September 2020.
12.
As such, the Respondent indicated that the loan with obligation to buy had been signed on 23
July 2019, and therefore the June 2019 edition of the RSTP was applicable to the matter at hand,
not the August 2020 one. Another interpretation would contravene the general principle of
non-retroactivity.
13.
Consequently, since the solidarity mechanism had been extended to national transfers with an
international dimension that occurred as from 1 July 2020 in accordance with FIFA’s Circular nr.
1709 of 13 February 2020, the Respondent considered that the transfer did not all under said
rule.
II. LEGAL CONSIDERATIONS
Applicable law:
RSTP: August 2020 edition.
Procedural Rules: 2021 edition.
Jurisdiction:
yes, uncontested.
Admissible:
yes, uncontested.
Decision:
1.
The Claimant requested the payment of solidarity contribution on the transfer of the player to
the Respondent on a permanent basis.
2.
The Respondent contested the entitlement of the Claimant to receive its share of solidarity
contribution arguing that the permanent transfer of the player occurred before 1 July 2020 and
the payment of solidarity contribution on national transfers was only introduced in July 2020
with the entering into force of the June 2020 edition of the RSTP.
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3.
The entitlement of a club to receive solidarity contribution is triggered by the registration of a
player against the payment of transfer compensation.
4.
According to art. 26 par. 2 of the RSTP, solidarity contribution disputes “shall be assessed
according to the regulations that were in force when the contract at the centre of the dispute
was signed, or when the disputed facts arose”.
5.
In casu the disputed fact arose when the player was permanently registered with the
Respondent.
6.
In accordance with art. 1 par. 2 of Annexe 5 of the RSTP, solidarity contribution is payable
when a professional player is transferred, either on a definitive or loan basis, between clubs
affiliated to different associations or when a professional player is transferred, either on a
definitive or loan basis, between clubs affiliated to the same association, provided that the
training club is affiliated to a different association.
7.
The international registration of a player with their new club becomes effective once the
“International Transfer Certificate” (“ITC”) is received by the new member association.
8.
At national level no ITC is issued, the national player passport or an abstract from the relevant
national registration system is the objective factor to determine the date of the player’s
permanent registration with the Respondent.
9.
In casu, the player was registered permanently with the Respondent on 1 September 2020.
10.
As such, the event giving rise to the dispute, i.e. the permanent registration of the player,
occurred after 1 July 2020.
11.
Because the August 2020 edition of the RSTP is applicable to the matter at stake, solidarity is
due to the Claimant for the permanent registration of the player with the Respondent on 1
September 2020.
12.
According to the player passport issued by the HNS on 9 January 2017, the player was registered
with the Claimant between 18 June 2014 and 1 July 2015, i.e. during 12 days of the season of
the player’s 18th birthday, the entire season of the player’s 19th birthday as well as 1 day of the
season of the player’s 20th birthday.
13.
Art. 1 par. 1 of Annexe 5 of the Regulations on the Status and Transfer of Players (RSTP),
stipulates, inter alia, that “This solidarity contribution reflects the number of years (calculated
pro rata if less than one year) he was registered with the relevant club(s)”.
14.
Bearing the above in mind, a club is rewarded for the training provided during the effective
period of the player’s registration with it, irrelevant of the duration of the season. The player
was with the Claimant without interruptions between 18 June 2014 and 1 July 2015.
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REF TMS 7183
15.
It is uncontested that the Respondent did not pay to the Claimant its portion of the solidarity
contribution generated by the permanent transfer of the player.
16.
Art. 2 par. 1 of Annexe 5 RSTP stipulates that solidarity contribution is to be paid to the training
club(s) of a player no later than 30 days after the player’s registration or, in case of contingent
payments, 30 days after the due date of such payments.
17.
As a result, any solidarity contribution due on the permanent transfer of the player was to be
paid as follows:
- on the amount of EUR 6,500,000 by “the start of the 2020/2021 season”, i.e. on 1 September
2020 (according to TMS), and fell overdue on 2 October 2020.
- on the amount of EUR 6,500,000 by ”the start of the 2021/2022 season”, i.e. on 1 July 2021
(according to TMS), and will fall overdue on 1 August 2021.
18.
Consequently, the amount to be taken into account to calculate the solidarity contribution due
to the Claimant is EUR 6,500,000, i.e. the first installment payable for the permanent transfer
of the player.
19.
The Claimant is entitled to solidarity contribution for the training and education provided to the
player as follows:
(i)
(ii)
(iii)
2013/2014 season (season of the Player’s 188h birthday): 12 days;
2014/2015 season (season of the Player’s 19th birthday): 365 days;
2015/2016 season (season of the Player’s 20th birthday): 1 day.
20.
As per art. 1 par. 1 of Annexe 5 of the RSTP, solidarity contribution for the seasons of a player’s
18th, 19th and 20th birthday amounts to 10% of the total solidarity contribution.
21.
If a player is registered for less than a year this amount is to be calculated on a pro rata basis
(cfr. Art. 1 par. 1 of Annexe 5 to the RSTP).
22.
Taking into account that the player was registered with the Claimant as established in point
II./19 above, the latter is entitled to receive solidarity contribution as follows:
(i)
2013/2014 season:
EUR 325,000 (EUR 6,500,000 x 5%) x 0.33 % (12 / 365 x 10%) = EUR 1,072.50;
(ii)
2014/2015 season:
EUR 325,000 (EUR 6,500,000 x 5%) x 10 % (365 / 365 x 10%) = EUR 32,500;
(iii)
2003 season:
EUR 325,000 (EUR 6,500,000 x 5%) x 0.03 % (1 / 365 x 10%) = EUR 97.50.
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23.
Consequently, the Claimant is entitled to receive EUR 33,670, corresponding to 10.36 % of the
solidarity contribution on the first instalment generated by the permanent transfer of the player
to the Respondent.
24.
In addition, taking into account the specific request of the Claimant as well as the wellestablished jurisprudence of the DRC with regard to interest, the Claimant is entitled to receive
interest at the rate of 5% p.a. on the due amounts as of the day after they became due, i.e. on
the amount of EUR 33,670 as of 2 October 2020 until the date of effective payment.
25.
Consequently, the claim of the Claimant is partially accepted.
26.
No procedural costs are levied as per art. 18 of the Procedural Rules.
27.
Art. 24 bis RSTP is applicable.
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REF TMS 7183
III. DECISION
1.
The claim of the Claimant, RNK Split, is partially accepted.
2.
The The Respondent, CAGLIARI CALCIO SPA, shall pay to the Claimant as solidarity contribution:
-
EUR 33,670, plus 5% interest per annum on that amount as from 2 October 2020, until
the date of effective payment.
3.
Any further claims of the Claimant are rejected.
4.
The Claimant shall immediately inform the Respondent of the bank account to which the
Respondent must pay the due amount (including all applicable interest).
5.
The Respondent shall provide evidence of full payment to [email protected]. If applicable,
the evidence shall be translated into an official FIFA language (English, French, German, Spanish).
6.
If the due amount (including all applicable interest) is not paid by the Respondent within 45 days
as from notification of the bank account details, 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 and for the maximum duration of three
entire and consecutive registration periods.
2. The ban will be lifted immediately, and prior to its complete serving, following confirmation
that the due amount (including all applicable interest) has been received by the Claimant.
3. In the event that the payable amount as per in this decision 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 the FIFA Disciplinary Committee.
7.
No procedural costs are payable (cf. arts. 17 par. 1 and 18 par. 1 of the Rules Governing the
Procedure of the Players’ Status Committee and Dispute Resolution Chamber)
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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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 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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