Solidarity Contribution
Texto da decisão
Decis ion of the
S ingle Judge of the s ub-com m ittee of the
Dis pute Res olution Cham ber (DRC)
passed on 24 February 2020,
by Johan v an Gaalen (South Africa),
Single Judge of the sub-committee of the DRC,
on a matter between the club,
Roy al S panis h Football Federation, Spain
on behalf of Padres Paules CF
as Claimant
against the club,
Beijing Guoan FC, China PR
as Respondent
regarding solidarity contribution in connection with the transfer
of the player Jonatan Viera Ramos
I.
Facts of the case
1.
The Royal Spanish Football Federation (hereinafter: the Spanish Football Federation or
the Claimant) confirmed that the player, Jonatan Viera Ramos (hereinafter: the
player), born on 21 October 1989, was registered with its formerly affiliated club,
Padres Paules C.F. (hereinafter: Padres Paules CF) as from 18 September 2003 until 30
June 2004.
2.
The Claimant confirmed that for the period during which the player was registered
with its formerly affiliated club, the sporting season in Spain started on 1 July and
finished on 30 June of the following year.
3.
The Claimant informed FIFA that Padres Paules CF had been disaffiliated as from the
2011/2012 season, and provided an extract of a Resolution taken by the Interinsular
Football Federation of Las Palmas, dated 31 May 2019, according to which Padres
Paules CF was no longer affiliated and did not participate in organized football as
from the 2011/2012 season.
4.
According to the information contained in the Transfer Matching System (hereinafter:
TMS), the player was registered with the Chinese club, Beijing Guoan FC (hereinafter:
the Respondent), on 28 February 2018.
5.
On 18 September 2019, and subsequently amended on 27 September 2019, the
Claimant contacted FIFA on behalf of its disaffiliated club, Padres Paules CF, claiming
its proportion of solidarity contribution in connection with the transfer of the player
from the Spanish club, UD Las Palmas (hereinafter: UD Las Palmas) to the Respondent
on 28 February 2018. In particular, the Claimant requested 3.75% of the 5% of the
agreed transfer compensation plus 5% interest p.a. as from the due date.
6.
According to the information contained in the TMS, UD Las Palmas and the
Respondent had agreed upon transfer compensation amounting to EUR 11,000,000
net, payable on 9 March 2018.
7.
As regards the transfer compensation, UD Las Palmas and the Respondent agreed that
“the solidarity contributions owed to third parties […] shall be calculated and paid by
[the Respondent] in surplus and exceeding the Transfer Fee”. In this context, the
relevant parties stipulated that “[the Respondent] is solely and exclusively responsible
for the calculation, payment and distribution of any solidarity contribution to any
third party […]. The Parties explicitly agree that a deduction from the Transfer Fee […]
is not permitted”.
8.
In this respect, pursuant to clause 3.3 of the transfer agreement, it was further
indicated that “the amount of the respective payment due from [the Respondent] to
Solidarity contribution for the player Jonatan Viera Ramos
(Padres Paules CF, Spain / Beijing Guoan FC, China PR)
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[UD Las Palmas] shall be increased to an amount which (after making any deductions
and/or withholdings) leaves an amount equal to the payment which would have been
due if no deduction and/or withholding had been required”.
9.
On 12 November 2019, in accordance with article 13 of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber and
the FIFA Circular 1689, the FIFA Administration sent a proposal to the parties.
According to the proposal made by the FIFA Secretariat, the proposed amount of EUR
22,752.63 (3.93% of the solidarity contribution) was due by the Respondent to the
Claimant.
10.
On 12 December 2019, the Respondent rejected FIFA’s proposal arguing that it had
“already paid the abovementioned solidarity contribution to Padres Paule[s] F.C on
April 13, 2018 with an amount of 27,500 euro”. In support of its statements, the
Respondent provided the following documents:
a)
b)
c)
d)
The copy of a power of representation authorizing Metromedia Sport, S.L.
(hereinafter: the representative) to act on behalf of Padres Paules;
The copy of an undated letter sent from the representative to the
Respondent, requesting the payment of solidarity contribution in the amount
of EUR 27,500;
The copy of an invoice allegedly sent from the representative to the
Respondent on 4 April 2018;
An evidence of the payment allegedly made to the representative on 13 April
2018.
11.
In view of all the above, on 13 January 2020, the Claimant was requested to confirm
our services whether it had received the payment allegedly made in connection with
the transfer of the player.
12.
On 16 January 2020, the Claimant sustained that it had not received any payment
from the Respondent.
II.
Cons iderations of the S ingle Judge of the sub-com m ittee of the DRC
1.
First of all, the Single Judge of the sub-committee of the DRC (hereinafter also
referred to as: the Single Judge) analysed whether he was competent to deal with the
case at hand. In this respect, he took note of the fact that the present matter was
submitted to FIFA on 18 September 2019. Taking into account the wording of art. 21
of the 2019 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.
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(Padres Paules CF, Spain / Beijing Guoan FC, China PR)
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2.
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 Regulations on the Status and Transfer of Players (edition 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 mechanism between
the Spanish Football Federation and a club of China.
3.
Furthermore, and taking into consideration that the player was registered with the
Respondent on 28 February 2018, 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 par. 2 of the Regulations on the Status and Transfer
of Players (edition 2020), the January 2018 version of the said Regulations
(hereinafter: the Regulations) is applicable to the present matter as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Single Judge entered into the substance of the matter. In this respect,
the Single Judge started by acknowledging all the aforementioned facts as well as the
arguments and the documentation submitted by the parties. The Single Judge,
however, emphasised that in the following considerations it will refer only to the
facts, arguments and documentary evidence, which it considered pertinent for the
assessment of the matter at hand. In particular, the Single Judge recalled that in
accordance with art. 6 par. 3 of Annexe 3 of the Regulations, FIFA may use, within the
scope of proceedings pertaining to the application of Regulations, any documentation
or evidence generated or contained in the TMS.
5.
Having established the above, the Single Judge started by acknowledging that the
Claimant accepted FIFA’s proposal dated 12 November 2019. Therefore, the Single
Judge considered that the Claimant had amended its claim and requested the amount
of EUR 22,752.63, being 3.93% of 5% of the compensation paid for the transfer of the
player, Jonatan Viera Ramos, from the Spanish club, UD Las Palmas, to the
Respondent.
6.
Furthermore, the Single Judge took note of the fact that the Claimant was claiming
solidarity contribution for the period during which the player had been registered
with its disaffiliated club, i.e. Padres Paules CF, as from 18 September 2003 until 30
June 2004.
7.
On the one hand, considering that the club Padres Paules CF ceased to participate in
organized football as from the 2011/2012 season, the Single Judge noted that the
Claimant deemed to be entitled to the solidarity contribution arising from the
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aforementioned transfer of the player pursuant to art. 2 par. 3 of Annexe 5 of the
Regulations.
8.
In this regard, the Single Judge acknowledged that the Claimant confirmed that
Padres Paules CF had been disaffiliated as from the 2011/2012 season, and in support
of its allegations, submitted an extract of a Resolution taken by the Interinsular
Football Federation of Las Palmas dated 31 May 2019, according to which Padres
Paules CF had been disaffiliated.
9.
On the other hand, the Single Judge observed that the Respondent contested the
substance of the claim, as it deemed to have paid the entire solidarity contribution to
Padres Paules CF.
10.
With due consideration to the above, the Single Judge first of all turned his attention
to the question as to whether or not the Claimant is entitled to receive solidarity
contribution from the Respondent in connection with the international transfer of the
player from UD Las Palmas to the Respondent.
11.
In this context, the Single Judge recapitulated that art. 2 par. 3 of Annexe 5 of the
Regulations stipulates that an association is entitled to receive the proportion of
solidarity contribution, which in principle would be due to one of its affiliated clubs, if
it can provide evidence that the club involved in the professional’s training and
education has in the meantime ceased to participate in organised football and/or no
longer exists due to, in particular, bankruptcy, liquidation, dissolution or loss of
affiliation.
12.
In view of the aforementioned, the Single Judge concluded that the Claimant had
provided enough evidence that Padres Paules CF had been disaffiliated as from the
2011/2012 season.
13.
Therefore, taking into account that the Claimant proved that Padres Paules CF was no
longer affiliated and/or participating under the auspices of the Spanish Football
Federation, the Single Judge concluded that the Claimant was, in principle, entitled to
receive the proportion of solidarity contribution for the period of time the player was
registered with its formerly affiliated club, i.e. Padres Paules CF.
14.
Subsequently, as regard to the Respondent’s allegation that it has fulfilled all its
obligations towards Padres Paules CF, the Single Judge firstly 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.
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15.
According to this, the Single Judge noted that the Respondent substantiated its
defence, as it presented evidence that it made a payment towards the Padres Paules
CF’s alleged representative in the amount of EUR 27,500 on 13 April 2018.
16.
Notwithstanding the above, even though the Respondent provided a copy of the
power of representation authorizing the representative to act, allegedly, on behalf of
Padres Paules CF, the Single Judge wished to emphasize that it was impossible to
conclude with certainty who effectively benefitted from such payment, considering
the fact that the club Padres Paules CF had been disaffiliated since the 2011/2012
season.
17.
In this regard, the Single Judge was of the firm opinion that the Respondent should
have performed due diligence in establishing in whose favor the payment of solidarity
contribution was being made.
18.
Furthermore, the Single Judge concluded that a payment made to an agency who
allegedly represented a disaffiliated club, cannot be considered as the Respondent
having complied with its obligation to pay solidarity contribution.
19.
As a consequence of the aforementioned, the Single Judge determined that
notwithstanding the payment made, the Respondent still had to comply with its
obligations under art. 2 par. 3 of Annexe 5 of the Regulations, i.e. paying the relevant
proportion of solidarity contribution to the Spanish Football Federation.
20.
In continuation, and entering into the substance of the matter, the Single Judge
started by acknowledging that the Claimant is requesting solidarity contribution
based on an alleged transfer compensation of EUR 11,000,000 allegedly paid by the
Respondent to UD Las Palmas in connection with the international transfer of the
player.
21.
At the same time, the Single Judge acknowledged that according to the relevant
transfer agreement remitted to FIFA, the player was transferred on a permanent basis
from UD Las Palmas to the Respondent for the net amount of EUR 11,000,000.
22.
In this respect, the Single Judge moved to analysed whether the solidarity
contribution should be calculated on the basis of the net transfer compensation
stipulated in the transfer agreement or on the basis of a gross transfer compensation,
whereby the solidarity contribution should be added on top of the net transfer
compensation.
23.
In view of the above, the Single Judge recalled the content of the transfer agreement
concluded between the Respondent and UD Las Palmas, according to which the
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parties agreed that “the solidarity contributions owed to third parties […] shall be
calculated and paid by [the Respondent] in surplus and exceeding the Transfer Fee”.
24.
Furthermore, the Single Judge recalled that the aforementioned clubs agreed upon
the following: “the amount of the respective payment due from [the Respondent] to
[UD Las Palmas] shall be increased to an amount which (after making any deductions
and/or withholdings) leaves an amount equal to the payment which would have been
due if no deduction and/or withholding had been required”.
25.
In this respect, the Single Judge observed that the transfer agreement clearly
stipulated that the transfer compensation of EUR 11,000,000 is a “net” amount, as
well as that the Respondent is exclusively responsible for the payment of solidarity
contribution, and that “a deduction from the Transfer Fee […] is not permitted”.
26.
According to the Single Judge, under these circumstances, the above-mentioned
wording of the transfer agreement does not leave room for an interpretation that the
solidarity contribution must be deducted from the transfer compensation stipulated in
the transfer agreement. In this respect, the Single Judge pointed out that this was not
disputed by the parties.
27.
Having analysed the wording of the transfer agreement at stake, the Single Judge
wished to underline that there is no legal obstacle which prevents the clubs from
agreeing that the new club, apart from paying the transfer compensation,
additionally bears the solidarity contribution. In this regard, the Single Judge
reiterated that this is indeed what the parties to the transfer agreement clearly
agreed upon. In this respect, the Single Judge wished to emphasize that, as a general
rule, the relevant clause in the transfer agreement must make a clear reference to a
net amount as well as to the solidarity contribution.
28.
Furthermore, the Single Judge highlighted that CAS has established, in line with its
jurisprudence, that an agreement on a net transfer compensation without deducting
solidarity contribution does not contravene the spirit of the Regulations. Equally, CAS
has established that a scenario in which the solidarity contribution is to be deducted
from a gross transfer compensation does not harm the entitlement of the training
club(s) since it would rather enhance the solidarity contribution.
29.
Having said that, the Single Judge held that the agreement between UD Las Palmas
and the Respondent is also covered by the wording of art. 1 of Annexe 5 of the
Regulations which, as pointed out previously, provides that 5% of any transfer
compensation shall be deducted from the total amount of the compensation and
distributed by the new club. In this respect, the CAS held that the wording of the
Regulations does not prohibit that the amount specified in a transfer agreement
represents only 95% of the gross transfer value, as long as the solidarity contribution
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in the end is still deducted from the gross transfer value and distributed in conformity
with the wording of art. 1 of Annexe 5 of the Regulations.
30.
As a consequence of the aforementioned, the Single Judge concluded that the abovementioned provisions in the transfer agreement between UD Las Palmas and the
Respondent are valid, considering the clear reference to a net amount as well as the
explicit reference to the solidarity contribution which may not be deducted from the
transfer compensation stipulated in the transfer agreement. Therefore, the Single
Judge held that the gross transfer compensation shall serve as the basis for the
calculation of the solidarity contribution.
31.
In the present matter, the Single Judge explained that the agreement on a net
transfer compensation without deduction leads to the situation that the agreed
transfer compensation of EUR 11,000,000 constitutes only 95% of the total amount of
compensation for the transfer of the player, while the gross transfer compensation,
i.e. 100% of the total amount of compensation, is EUR 11,578,947 (EUR 11,000,000 / 95
x 100 = EUR 11,578,947).
32.
Having established the above, the Single Judge went on to determine which should be
the relevant amount of the solidarity contribution to be paid by the Respondent to
the Claimant.
33.
To that end, the Single Judge referred again to art. 1 of Annexe 5 of the Regulations
which provides the figures for the distribution of the solidarity contribution, according
to the period of time the player was effectively trained by a specific club and taking
into consideration the age of the player at the time he was being trained and
educated by the club(s) concerned.
34.
In this context, the Single Judge recalled that, according to the player passport issued
by the Spanish Football Federation, the player, born on 21 October 1989, was
registered with the Claimant as from 18 September 2003 until 30 June 2004,
corresponding to 9 months and 12 days regarding the season of the player’s 14th
birthday.
35.
In view of the foregoing, the Single Judge established that the Claimant was entitled
to 3.93% of 5% of the compensation paid by the Respondent to UD Las Palmas i.e.
3.93% of 5% of EUR 11,578,947.
36.
In view of all the above, the Single Judge decided that the Respondent must pay to
the Claimant the amount of EUR 22,752.63 plus default interest at a rate of 5% p.a. on
the said amount as from 28 March 2018 until the date of effective payment.
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37.
Lastly, the Single Judge referred to art. 18 par. 1 of the Procedural Rules, according to
which, in proceedings before the DRC relating to disputes regarding training
compensation and the solidarity mechanism, costs in the maximum amount of CHF
25’000 are levied. The relevant provision further states that the costs are to be borne
in consideration of the parties’ degree of success in the proceedings (cf. art. 18 par. 1
of the Procedural Rules).
38.
In respect of the above, and taking into account that the claim of the Claimant has
been partially accepted, the Single Judge concluded that Beijing Guoan FC has to bear
the costs of the current proceedings in front of FIFA.
39.
According to Annexe A of the Procedural Rules, the costs of the proceedings are to be
levied on the basis of the amount in dispute.
40.
The amount in dispute to be taken into consideration in the present proceedings
amounts to EUR 22,752.63 relating to the claim of the Claimant. The Single Judge
therefore concluded that the maximum amount of costs of the proceedings
corresponds to CHF 5,000 (cf. table in Annexe A of the Procedural Rules).
41.
As a result, considering the particularities of the present matter as well as the parties’
degree of success, the Single Judge determined the final amount of costs of the
current proceedings in the amount of CHF 4,000.
42.
In view of all of the above, the Single Judge concluded that the amount of CHF 4,000
has to be paid by the Respondent to cover the costs of the present proceedings.
*****
III.
Decis ion of the S ingle Judge of the sub-comm ittee of the DRC
1.
The claim of the Claimant, the Royal Spanish Football Federation, acting on behalf of
Padres Paules CF, is accepted.
2.
The Respondent, Beijing Guoan FC, has to pay to the Claimant, w ithin 30 day s as
from the date of notification of this decision, the amount of EUR 22,752.63, plus 5%
interest p.a. as from 28 March 2018 until the date of effective payment.
3.
In the event that the aforementioned sum plus interest is not paid by the Respondent
within the stated time limit, the present matter shall be submitted, upon request, to
FIFA’s Disciplinary Committee for consideration and a formal decision.
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4.
The Claimant is directed to inform the Respondent immediately and directly of the
account number to which the remittance is to be made and to notify the Single Judge
of the sub-committee of the DRC of every payment received.
5.
The final costs of the proceedings in the amount of CHF 4,000 are to be paid by the
Respondent, w ithin 30 day s of notification of the present decision, to FIFA to the
following bank account with reference to case no. TMS 4793:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the motiv ated decis ion (legal remedy):
According to art. 58 par. 1 of the FIFA Statutes, this decision may be appealed against
before the Court of Arbitration for Sport (CAS). The statement of appeal must be sent to the
CAS directly within 21 days of receipt of notification of this decision and shall contain all the
elements in accordance with point 2 of the directives issued by the CAS, a copy of which we
enclose hereto. Within another 10 days following the expiry of the time limit for filing the
statement of appeal, the appellant shall file a brief stating the facts and legal arguments
giving rise to the appeal with the CAS (cf. point 4 of the directives).
The full address and contact numbers of the CAS are the following:
Court of Arbitration for Sport (CAS)
Avenue de Beaumont 2
CH-1012 Lausanne
Switzerland
Tel: +41 21 613 50 00
Fax: +41 21 613 50 01
e-mail: [email protected]
www.tas-cas.org
For the Single Judge of the sub-committee of the DRC:
_______________________
Emilio García Silvero
Chief Legal Officer
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