Decision of the Dispute Resolution Chamber CF Benfica, Portugal Club

TMS 5723 Decision of the Dispute Resolution Chamber passed on 18 June 2020, regarding solidarity contribution for the transfer of the player Gelson Dany BATALHA MARTINS COMPOSITION: Geoff Thompson (England), Chairman Mohamed Muzammil (Singapore), member Stefano Sartori (Italy), member CLAIMANT: CF Benfica, Portugal RESPONDENT: Club Atlético de Madrid, Spain INTERVENING PARTY: Sporting CP, Portugal Page 2 of 11 {$iygzYD7lf3oDNI3EjZrk+PiXvFQCPaRvzcL9dpeRP8CCWdFIYQ9MDHXbb6bJ9zwHxEPGPpPo/YmC6SurKUrKuvZzHKioxg8c3pZ7IGyuxjNB0anXLve3TyiLk4lioELCDG4FnXU7qCOSIkMEnZBwK3Iiszb5np7HbIUN41iSh11CNeICtv2dH0Qrj2M7sZQPNneNN0Ya+ePIIfW0ahvVqlJ6AvSe356YMg1DjbtLlXlczWZ2B6SH+zUBZILZ0Ojo+WONZaPdkz9QwOB0awE2T2s1PQVIf4xnLosuk+ZMrx8=$}{$Lt8p+//H5VtC7g/IoEF3UMrjwh8ekG5qRs7dG8FLGdyfLxPGl7FQty2WAKp7UAla28A2Gi4IBSQ8yzNSuX5jwfEIUZ1UFDzT6PHNHZEF49Sk67FY3NIbLZ5TY5t12DZ1nI35xPsyvrSejqWI4wggqDZSkTPUUl2l78DEMsifXbbGbuX3Lq4mQS5JrKz+2d0PSgIOCB9Bpo9fToN2Wh5PKDdBTy1BUInSrX2X6kVoJFON2quqFMBJZQYmI1ZRcBXZzaJjQfLFJm55xEdivy09DHdphHiLPCGDlT1x5MFTNhs=$} TMS 5723 I. FACTS OF THE CASE 1. According to the players’ passport issued by the Federação Portuguesa de Futebol (FPF), the Portuguese player, Gelson Dany Batalha Martins, born on 11 May 1995, was registered with the Claimant as follows: Club: Start date End date Benfica 27 October 2008 30 June 2009 Benfica 7 October 2009 30 June 2010 Benfica 7 October 2010 30 June 2011 2. On 6 June 2018, the player unilaterally terminated the contract with Sporting. 3. On 25 July 2018, the player registered “out of contract” with Atlético (TMS Ref. 204717). 4. On 13 August 2018, Sporting lodged a claim before FIFA (PSC) against Atlético. 5. On 31 August 2018, the player lodged a claim against Sporting before the Tribunal Arbitral do Desporto (TAD), case ref. 64/22018. 6. On 24 April 2019, Atlético and Sporting concluded a settlement agreement, stipulating the following: “(K) Without admitting any kind of liability of whatsoever nature, Atletico recognises there is a value to the Player's registration that it acquired. As such, to avoid the disputes between the Parties progressing, it is prepared to pay an indemnity to Sporting to reflect the transfer fee it could have assessed to pay had it concluded a formal transfer with Sporting prior to the Player’s termination of the Sporting Contract, in the terms foreseen in the present document. “1.5 Sporting and the Player accept the terms of this Agreement in full and final settlement, release, withdrawal and waiver of any and all actions, claims, counterclaims, complaints, causes or rights of action or proceedings, ,whether at law or in equity, of whatsoever nature and howsoever arising, now or in the future, in any jurisdiction whatsoever, against Sporting, the Player and/ or Atletico, in relation to the unilateral termination of the employment contract between Sporting and the Player and the registration of the Player with Atletico 2.1. In consideration of the Parties’ respective rights and obligations hereunder, Atlético agrees to pay Sporting the total amount of €22.500.000,00 (twenty-two million five hundred thousand Euros) (the “Indemnity”) [payable as follows]: (a) Euro 3.000.000,00 (three million euro) upon signature of the present agreement; (b) Euro 8.250.000,00 (eight million two hundred and fifty thousand Euro) by 31 July 2019; (c) Euro 11.250.000,00 (eleven million two hundred and fifty thousand Euro) by 31 July 2020. (…) 2.3. It is clear for the parties that the present Indemnity is not subject to any deduction regarding the Solidarity Mechanism as established in article 21 and Annex 5 of the FIFA RSTP. Notwithstanding the above, in the unlikely event that a claim is filed in this respect, the Parties agree that Spotting will be the sole responsible for any payment that is ordered. In the event that Atletico is ordered to make any payment by any court in this concept, Sporting shall reimburse that amount to Atletico immediately.” 7. The Claimant lodged a claim against the Respondent 1 and requested the payment of the amount of EUR 103,500 as solidarity contribution, corresponding to 9.2% of the 5%. Page 3 of 11 {$19+5KGXkPLtzrfTh7ld32Bayw5BEkIRQYUwkbgL5VkQqkDv6DwUj7bsJgnlft7769w5TU/ofyP+sa6HZA/5FCt7NXLxrxV9Wxb3dWoqAd5DvNBve4iBeJB2mlRK7bPpyDnT9IziRXc7qRsP0fushcc6yUYvELMdm7yN29WNrNDLRUqXnvEivt56Hb4N1Gs9ZjHYfNKtkaPmszm06VDiF8QYKGug4IttiTjUSVlkshEh52wdkNPzw2dC8+tW4O9F0EXKRlmsZ+wc/8SxfiEVT/4RWNrre+C9GG0HUy2pIHyo=$}{$MBr0RMM3qlT558k+Jpn1GDn2Uk4BZoAac3GYdEKwCs0ErPQ83935QjDYn0ddenAWDTdaGJr4+j93H6Vi8m8FihR/RctvDQ5MYeQDjgxGB0pxaecOxhVPHPKxmMBQQ5RPKF0pKELXmIk63ncEMDqZCyjIupymPeSFGbzHb0XXo6E+TTHRNJbE+xP1eHDKsjpIQliD/UgG3vmlQmmdNbn6e6mnHYG4U8HdivCX50kw9nMqIZocmxNtcgHcWTBiV2UpFX5kqKOq26EdiO7jtcWGr0BEwvgdejQhJg7zV2+0EtM=$} TMS 5723 8. In particular, the Claimant considered that the Respondent paid the amount of EUR 22,500,000 for the transfer of the player. 9. In its reply to the claim, Atlético rejected the claim of the claimant. 10. In particular, Atlético argued that the player was registered with it as a free agent and argued that the settlement agreement did not reflect a transfer. 11. In its reply to the claim, Sporting explained that it never transferred the federative rights of the player to Atlético de Madrid, and noted that he registered with said club as a free agent. 12. Sporting further explained that, “under the Settlement Agreement, parties agreed to settle and close all pending and potential disputes over the unilateral termination of the employment contract by the Player and the registration of the Player’s federative rights.” 13. In this respect, Sporting underlined that” he object of the Settlement Agreement– concluded almost a year after the Player had become a free agent – was not the transfer of the Player (which was legally impossible at that point), but rather the settlement of any pending and potential disputes over the unilateral termination of the employment contract by the Player. Sporting insisted that said Settlement Agreement cannot be qualified as a transfer agreement for the purposes of art. 21 RSTP. 14. According to Sporting, “Article 21 of the RSTP is clear: the solidarity mechanism is (only) payable when a player is transferred before the expiry of his contract, and this means that free agency and solidarity mechanism are intrinsically incompatible.” 15. Sporting further refer to the Arbitral Award CAS 2011/A/2356, noting that “the player’s federative rights were not transferred by Sporting CP (which had no federative rights to transfer) and surely not before the expiry of the Employment Contract, hence no solidarity mechanism is payable. 16. In sum, Sporting concluded that no solidarity mechanism is payable to CF Benfica , and wished to express that, “in the present case and given its legal complexity, no bad faith could be attributed to Sporting CP or to Atlético de Madrid, as both are objectively convinced of the soundness of their arguments.” II. CONSIDERATIONS OF THE DISPUTE RESOLUTION CHAMBER 1. First of all, the Dispute Resolution Chamber (hereinafter also referred to as: the Dispute Resolution Chamber) analyzed whether it was competent to deal with the matter at hand. In this respect, it took note that, according to art. 21 of the November 2019 edition of the Rules Governing the Procedures of the Players’ Status Committee and the Dispute Resolution (hereinafter: the Procedural Rules), said edition of the Procedural Rules is applicable to the matter at stake. 2. Subsequently, the Dispute Resolution Chamber referred to art. 3 par. 1 and 3 of the Procedural Rules and confirmed that in accordance with art. 3 of Annexe 6 of in conjunction with art. 24 par. 1 and 2 and art 22 lit. d) of the Regulations on the Status and Transfer of Players, it is competent to deal with the dispute at stake, which concerns a dispute relating to the solidarity mechanism between clubs belonging to different associations. 3. Furthermore, the Dispute Resolution Chamber analyzed which regulations should be applicable as to the substance of the matter. In this respect, it confirmed that, in accordance Page 4 of 11 {$7W7hy/0V4DeqKqjZAbkx7kjK4m6pIk9AlJMD9+S/11X7aZArmVTcw4YkvJCLrnJilp9086K4SWH1Q+3GDuYzbusSYV/wbLBu8NJg7sGEIUctoEBUHHdkgzp0jSE3n+2yiL3Xki7yColInr82l8cD/1sGEW9oSXqtRybGF6g+pviroiA59JYyMY1AqpLdwFMXjk64GMN6VuifqUEXINzPOOGX9p2w8xHL72rjPLUOvvxkgfspR8EA174fLPs6z5jgKLcJZAw6qMLdmf+V2+ZMj3jA7MqwnSbLkV7hhZvtLCg=$}{$Gpvs72M56vUuDzLo0qqS0HyQE/69XFbAXUC+isiaDM67DdMOOEiNSrD0ANs+94GR5j2Vv+SMHgljO5gr6mX1a55fqJRwDHgoEXN1IMZAnk288xhthZcLMoV6KheRAZkjM9jIMz1eXitBo4/t7/a5bq9ZWBISBfk0d9nbqyKkq0insllZCOaeQYUiLUrCkbrGowENEApEkbSyiJxe6vRzwnMgUfvimivs+bGSq4oMPN1nDOoAraENwGcazuR8Kd79FPwOa5r8KOzuuiAg81tNBpNCF2VyYwVaen+hrf3nsTY=$} TMS 5723 with art. 26 par. 1 and 2 of the Regulations, and considering that the player was registered with the Respondent on 25 July 2018, the June 2018 edition of the Regulations on the Status and Transfer of Players (hereinafter: the Regulations) is applicable to the matter at hand as to the substance. 4. The competence of the Dispute Resolution Chamber and the applicable regulations having been established, the Dispute Resolution Chamber entered into the substance of the matter. In this respect, the Dispute Resolution Chamber started by acknowledging all the above- mentioned facts as well as the arguments and the documentation submitted by the parties. However, the Dispute Resolution Chamber emphasized 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

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