Dispute Resolution Chamber
Texto da decisão
REF TMS 7213
Decision of the
Single Judge of the sub-committee of
The Dispute Resolution Chamber
passed on 25 January 2021
regarding solidarity contribution in connection with the transfer of the player Stephan El
Shaarawy from Roma Spa (Italy) to Shanghai Shenhua FC (China PR)
BY:
Philippe Diallo (France), Single Judge of the sub-committee of the
Dispute Resolution Chamber
CLAIMANT:
GENOA CRICKET FC, Italy
RESPONDENT:
SHANGHAI SHENHUA FC, China PR
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REF TMS 7213
I. FACTS OF THE CASE
Player:
Stephan EL SHAARAWY
Date of birth:
27 October 1992
Player passport:
issued by the Federazione Italiana Giuoco Calcio (FIGC) on 12 November 2020.
Season
04/05
05/06
06/07
07/08
08/09
09/10
10/11
10/11
11/12
Birthday
12th
13th
14th
15th
16th
17th
18th
18th
19th
Club(s)
Genoa Cricket FC
Genoa Cricket FC
Genoa Cricket FC
Genoa Cricket FC
Genoa Cricket FC
Genoa Cricket FC
Genoa Cricket FC
Padova
Genoa Cricket FC
Registration dates
13.09.2004 – 30.06.2005
16.09.2005 – 30.06.2006
08.09.2007-30.06.2007
01.07.2007-30.06.2008
01.07.2008-30.06.2009
01.07.2009-30.06.2010
01.07.2010
02.07.2010-30.06.2011
01.07.2011-30.06.2013
Sporting season:
1 July to 30 June (Italy)
Date of transfer:
19 July 2019, from AS Roma (Italy) to Shanghai Shenhua (China PR)
Conditions:
Fixed transfer fee of EUR 16,000,000 payable within 5 working days of the
signature.
clause 2.3 of the transfer agreement stipulates that the transfer fee is ‘to be
considered net of any tax, duty, withholding and solidarity contribution
payment which shall be borne entirely by [Shanghai Shenhua].”
Claimant club:
Genoa Cricket FC (Italy)
Respondent club:
Shanghai Shenhua (China PR)
Claim and Response:
1.
On 16 November 2021, the Claimant requested the payment EUR 412,746.93, corresponding
to 49.26% of the solidarity contribution generated by the transfer fee, plus 5% interests p.a. as
of 8 August 2019.
2.
In particular, the Claimant argued that because the transfer of fee of EUR 16,000,000 was net
of solidarity contribution, such contribution was to be added on top of said amount.
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REF TMS 7213
3.
As such, the Claimant deemed that the amount of EUR 16,842,105 was to be taken into account
and that therefore, solidarity contribution amounted to EUR 842,105.
4.
The Claimant based its claim on the assumption that the player was registered with it as follows:
-
291 days of his 12th birthday season (3.98% of the solidarity contribution);
entirety of his 13th birthday season (5% of the solidarity contribution);
entirety of his 14th birthday season (5% of the solidarity contribution);
entirety of his 15th birthday season (5% of the solidarity contribution);
entirety of his 16th birthday season (10% of the solidarity contribution);
entirety of his 17th birthday season (10% of the solidarity contribution);
1 day of his 18th birthday season (0.3% of the solidarity contribution); and
entirety of his 18th birthday season (10% of the solidarity contribution).
5.
On 30 November 2020, 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 395,957.89
to the Claimant as solidarity contribution.
6.
The Respondent did not reply to the proposal of the FIFA administration.
7.
The Claimant rejected the calculation proposed, arguing that the player had been trained and
“educated” by it “during the entire period from 13/09/2004 to 01/07/2010 and from
01/07/2011 to 30/06/2012 with no interruptions whatsoever.”
8.
The Claimant provided the statement of one of his youth coaches who confirmed that the player
trained at the club during the relevant timeframes.
9.
According to the Claimant, “although the FIFA RSTP provides that solidarity contribution reflects
the number of years in which the player was registered with the relevant club pursuant to his
player passport (…) in light of the rationale behind solidarity contribution, the relevant period is
actually represented by the “actual years of training” spent by the player with the club, rather
than the years of registration.”
10.
Hence, the Claimant deemed that “a factual (rather) that a formalistic” approach was to be
applied in the calculation of the period relevant to solidarity contribution, “when the data
provided by the player passport does not reflect the actual period spent by the player with the
relevant training club. As such, if the player passport is not accurate, greater weight shall be
given to other evidence when assessing the period relevant to the calculation of the solidarity
contribution due to a specific club.”
11.
The Claimant added that “the interruptions resulting from the player passport are due to mere
administrative formalities provided under Italian domestic regulations for the registration of
under-14 players. In particular, according to the applicable Italian regulations, clubs are allowed
to register players under the age of 14 only for one football season at a time. As a result, at the
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REF TMS 7213
end of each football season, the relevant registration ends and needs to be reinstated at the
beginning of the following football season.”
12.
“Such administrative formalities are the reason why the renewal of the registration for under 14
players was not immediate. Hence the interruptions of the Player’s registration with Genoa CFC
indicated by the player passport.”
13.
Thus, it reiterated its prayer for relief.
II. LEGAL CONSIDERATIONS
Applicable law:
Regulations on the Status and Transfer of Players (RSTP): June 2019 edition.
Rules Governing the Procedures of the Players’ Status Committee and the
Dispute Resolution Chamber (Procedural Rules): January 2021 edition.
Jurisdiction:
Yes, uncontested
Admissible:
Yes, uncontested
Decision:
1.
The Claimant is requesting the payment of its portion of solidarity contribution on the transfer
fee paid in the context of the transfer of the player to the Respondent.
2.
The Respondent does not contest the entitlement of the Claimant to receive solidarity
contribution for the training and education provided to the player.
3.
The Claimant contested the accuracy of the information included in the player passport issued
by the FIGC arguing that the player was trained by it between 13/09/2004 and 01/07/2010 as
well as from 01/07/2011 to 30/06/2012 without interruptions.
4.
However, it remained uncontested that the player had not been registered with the Claimant
from 1 July 2005 until 15 September 2005 and from 1 July 2006 to 7 September 2006.
5.
In accordance with art. 2 par. 2 of Annexe 5 of the RSTP solidarity contribution is calculated and
distributed in accordance with the player’s career history as provided in the player passport.
6.
In fact, solidarity contribution is based on the “effective training and education” of a player. The
DRC confirmed on several occasions that such effective training and education can only be
determined by one objective factor which is the registration history of the player included the
player passport issued by the relevant member association.
7.
As a result, only the registration dates of the player with the Claimant as indicated in the player
passport issued by the FIGC can be taken into account.
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8.
It is uncontested that the Respondent did not pay to the Claimant its portion of the due solidarity
contribution generated by the transfer fee.
9.
In this regard, the amount to be taken into consideration is in principle EUR 16,000,000.
10.
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 1,600,000.
11.
Nevertheless, the DRC recognizes that in cases where the transfer agreement explicitly indicates
that the transfer fee does not comprise solidarity contribution, solidarity contribution shall be
added to the amount payable as transfer fee.
12.
In casu, clause 2.3 of the agreement unequivocally stipulates that the transfer fee does not
include solidarity contribution. Therefore, solidarity contribution is to be calculated in addition
to the transfer compensation.
13.
As a result, 5% is to be added to the total amount of EUR 16,000,000. Consequently, the
amount to be taken into account to calculate the solidarity contribution due to the Claimant is
EUR 16,842,106, i.e. EUR 16,000,000 plus 5%.
14.
The Claimant is entitled to receive its portion of the due solidarity contribution for the training
and education provided to the player between his 12 th and 19th birthday.
15.
As per art. 1 par. 1 of Annexe 5 RSTP, solidarity contribution for the seasons of a player’s 12 th,
13th, 14th and 15th birthday amounts to 5% of the total solidarity contribution, the one for the
seasons of a players 16th, 17th, 18th and 19th amounts to 10% of the total solidarity contribution.
16.
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).
17.
Taking into account the time that the player was registered with the Claimant as established in
the player passport issued by the FIGC, the Claimant is entitled to receive 47.02% of the
solidarity contribution due, i.e. 3.99% for the season of his 12 th birthday, 3.95% for the season
of his 13th birthday, 4.05% for the season of his 14th birthday, 5% for the season of his 15 th
birthday, 10% for the season of his 16 th birthday, 10% for the season of his 17 th birthday, 0.03%
for the season of his 18th birthday and 10% for the season of his 19 th birthday. In total the
solidarity contribution due amounts to EUR 395,957.89.
14.
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 amount as of the day after it became due, i.e as from
19 August 2019 (i.e. 13 days after the registration of the player with the Respondent) until the
date of effective payment.
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18.
Consequently, the claim of the Claimant is partially accepted and any of its further claim is
rejected.
15.
No procedural costs are levied as per art. 18 of the Procedural Rules.
16.
Art. 24 bis RSTP is applicable.
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III. DECISION
1. The claim of the Claimant, Genoa Cricket FC, is partially accepted.
2. The Respondent, Shanghai Shenhua FC, shall pay to the Claimant:
-
EUR 395'957.89 as solidarity contribution, plus 5% interest per annum on that amount
as from 19 August 2019, until the date of effective payment.
3. Any further claim of the Claimant is 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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