Dispute Resolution Chamber
Texto da decisão
REF TMS 8010
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 30 April 2021
regarding solidarity contribution in connection with the transfer of the player Thiago
SANTOS SANTANA from Santa Clara Acores (Portugal) to Shimizu S-Pulse (Japan)
BY:
Geoff Thom ps on (England), Single Judge of the sub-committee of
the Dispute Resolution Chamber
CLAIMANT:
SER CAXIAS DO SUL, Brazil
RESPONDENT:
SHIMIZU S-PULSE, Japan
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REF TMS 8010
I. FACTS OF THE CASE
Player:
Thiago SANTOS SANTANA
Date of birth:
4 February 1993
Player passport:
issued by the Confederação Brasileira de Futebol (CBF) on 21 January 2021
Season
2008
2009
Birthday
15th
16th
2010
17th
2011
18th
Club(s)
Palmeiras
Palmeiras
Sao Carlos
Sao Carlos
Sao Carlos
Sao Carlos
Internacional
Registration dates
22/07/08 – 31/12/08
18/03/09 – 08/09/09
09/09/09 – 31/12/09
11/03/10 – 07/11/10
08/11/10 – 31/12/10
01/01/11 – 12/09/11
13/09/11 – 31/12/11
2012
19th
Internacional
01/01/12 – 13/07/12
Sao Carlos
Internacional
14/07/12 – 17/07/12
18/07/12 – 31/12/12
2013
20th
Internacional
01/01/13 – 31/12/13
2014
21st
Internacional
01/01/14 – 11/02/14
SER Caxias do Sul
12/02/14 – 30/12/14
Sao Carlos
Sao Carlos
CA Hermann
31/12/14
01/01/15 – 14/01/15
15/01/15 – 08/05/15
Sao Carlos
Figueirense
09/05/15 – 11/05/15
12/05/15 – 31/12/15
Nautico
01/01/16 – 02/05/16
Sao Carlos
Vitoria (Portugal)
03/05/16 – 30/06/16
01/07/16 – 31/12/16
2015
2016
22
nd
23rd
Sporting season:
Status
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Amateur (Permanent)
Professional (permanent)
Professional (permanent)
Professional (on loan from
Sao Carlos)
Professional (on loan from
Sao Carlos)
Professional (permanent)
Professional (on loan from
Sao Carlos)
Professional (on loan from
Sao Carlos)
Professional (on loan from
Sao Carlos)
Professional (on loan
from Sao Carlos)
Professional (permanent)
Professional (permanent)
Professional (on loan from
Sao Carlos)
Professional (Permanent)
Professional (on loan from
Sao Carlos)
Professional (on loan from
Sao Carlos)
Professional (Permanent)
Professional (on loan from
Sao Carlos)
1 January to 31 December (Brazil)
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REF TMS 8010
Date of transfer:
1 February 2021, from Santa Clara Acores (Portugal) to Shimizu S-Pulse (Japan)
Conditions:
Fixed transfer fee of EUR 2,000,000 payable as follows:
a. EUR 500,0000 “deducted of 5% regarding solidarity mechanism, within
seven days after the communication from SHIMIZU mentioned in par. 22”;
b. EUR 1,500,000 “deducted of 5% regarding solidarity mechanism, on 31
January 2021”.
Clause 8: “For the sake of clarity, all the amounts defined in the preceding
clauses to be paid by SHIMIZU to SANTA CLARA include all taxes, rates, charges,
fees and any other payments, including solidarity mechanism and training
compensation (National or FIFA Regulations) due to any of the PLAYER’s former
training clubs.”
Claimant club:
SER Caxias do Sul (Brazil)
Respondent club:
Shimizu S-Pulse (Japan)
Claim and Response:
1.
On 15 March 2021, the Claimant requested the payment by the Respondent of a sum
corresponding to 8.8219% of 5% of EUR 2,105,263.16, that is to say EUR 9,286.23 “plus the
interest of 5% (five percent) per year, from the date in which each payment shall be done”.
2.
In this respect, the Claimant was of the opinion that clause 8 of the transfer agreement clearly
stipulated that the transfer of EUR 2,000,000 represented the net sum to be paid by the
Respondent to Santa Clara Acores, and that as such solidarity needed to be added above the
transfer fee.
3.
On 23 March 2021, the FIFA administration submitted a proposal to the parties, informing them
that it was of the opinion that the Respondent should pay the amount of EUR 7,210, plus 5%
interest per annum as from 3 March 2021 until the date of effective payment, to the Claimant.
4.
On 25 March 2021, the Claimant rejected the proposal and reiterated its above request for relief.
5.
On 28 March 2021, the Respondent accepted the proposal.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): January 2021 edition.
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): January 2021 edition.
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REF TMS 8010
Jurisdiction:
Yes, uncontested
Admissible:
Yes, uncontested
Decision:
1.
The Claimant is requesting the payment of its portion of solidarity contribution on the transfer
fee of reference, which it considers to be equal to 8.8219% of the total solidarity contribution
generated.
2.
What is more, the Claimant sustains that the solidarity contribution is explicitly excluded from
the transfer fee and therefore shall be added on top of the transfer fee.
3.
The Respondent does not contest the entitlement of the Claimant to receive solidarity
contribution for the training and education provided to the player.
4.
It is uncontested that the player was registered with the Claimant as from 12 February 2014
until 30 December 2014, corresponding to 322 days of the season of the player’s 21st birthday.
5.
It is uncontested that the Respondent did not pay to the Claimant its portion of the due solidarity
contribution generated by the transfer fee.
6.
In this regard, the amount to be taken into consideration is in principle EUR 2,000,000.
7.
According to art. 21 and art. 1 par. 1 of Annexe 5 RSTP, 5% of the above due transfer fee shall
be deducted as solidarity contribution, that is to say EUR 100,000.
8.
Nevertheless, the DRC previously established that in cases where the transfer agreement
explicitly indicates that the transfer fee does not comprise solidarity contribution, it is considered
that solidarity contribution shall be added on top of the transfer fee.
9.
Clause 8 unequivocally stipulates that the transfer fee includes solidarity contribution.
10.
Therefore, the argumentation of the Claimant shall be set aside, and it is established that
solidarity contribution in the present case amounts to EUR 100,000.
11.
In continuation, the Claimant is entitled to receive its portion of the due solidarity contribution
for the training and education provided to the player during the course of the season of the
player’s 21st birthday in accordance with the player passport of reference.
12.
As per art. 1 par. 1 of Annexe 5 RSTP, solidarity contribution for the season of a player’s 21st
birthday shall amount to 10% of the total solidarity contribution.
13.
If a player is registered for less than a year this amount shall be calculated pro rata (cf. art. 1 par.
1 of Annexe 5 RSTP).
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REF TMS 8010
14.
Since the player was registered with the Claimant for 322 days of the season of his 21st birthday,
the Claimant is entitled to receive 8,82% of the due solidarity contribution, i.e. 8.82% of EUR
100,000.
15.
In view of the above, the Claimant is entitled to receive EUR 8,820.
16.
The Claimant requested the award of interest rate of 5% per annum.
17.
In this respect, the well-established jurisprudence of the DRC applies interests as from the first
overdue day for the payment of solidarity contribution generated by any instalment of a transfer
fee.
18.
Since (1) it cannot be established with certainty when the first instalment was due; (2) the second
instalment was due on 31 January 2021; and (3) the player was effectively registered with the
Respondent on 1 February 2021, it is determined that the two instalment of the transfer fell due
on 31 January 2021.
19.
According to art. 2 par. 1 of Annexe 5 RSTP, solidarity contribution was to be paid to the training
club(s) 30 days after said date, i.e. until 2 March 2201.
20.
As a result, the Claimant is entitled to receive 5% interests per annum as from the date at which
solidarity contribution became overdue to the Claimant, that is to say as from 3 March 2021.
21.
The interest rate of 5% per annum on EUR 8,820 shall apply until the date of effective payment
of the outstanding solidarity contribution and its applicable interest.
22.
In view of all the above, the claim of the Claimant is partially accepted and the Claimant shall
receive EUR 8,820 as solidarity contribution, plus 5% interest p.a. on that amount, as from 3
March 2021 until the date of effective payment.
23.
Any further claim of the Claimant is rejected.
24.
Procedural costs in the maximum amount of CHF 25,000 may be levied for decisions passed by
the subcommittee of the DRC in disputes related to solidarity contribution (cf. art. 18 par. 1 of
the Procedural Rules).
25.
The amount claimed by the Claimant corresponds to EUR 9,286.23, i.e. below CHF 50,000.
Therefore, procedural costs levied in this respect shall not exceed the sum of CHF 5,000 (art. 1
of Annexe A of the Procedural Rules).
26.
In consideration of the amount claimed by the Claimant, costs of the current proceedings shall
be set at CHF 1,000.
27.
In view of the degree of success of the Claimant, the costs shall be borne in full by the
Respondent.
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REF TMS 8010
28.
The relevant provisions of art. 24bis RSTP are applicable in the present matter.
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REF TMS 8010
III. DECISION
1.
The claim of the Claimant, SER Caxias do Sul, is partially accepted.
2.
The Respondent, Shimizu S-Pulse, shall pay to the Claimant EUR 8,820 as solidarity contribution,
plus 5% interest per annum on that amount as from 3 March 2021, until the date of effective
payment.
3.
Any further claims lodged by the Claimant are 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 (RSTP), 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 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 24bis paragraphs 7 and 8 of the RSTP.
7. The final costs of the proceedings in the amount of CHF 1,000 are to be paid by the Respondent
to FIFA with reference to case no. TMS 8010 (cf. note relating to the payment of the procedural
costs below).
For the Single Judge of the sub-committee of the Dispute Resolution Chamber:
Emilio García Silvero
Chief Legal & Compliance Officer
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REF TMS 8010
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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