Emmanuel Emenike, subject of the DRC’s most recent solidarity case/Independent.ie

Earlier this month, FIFA’s Dispute Resolution Chamber denied solidarity claims by two US youth clubs — Sockers FC Chicago and Dallas Texans. Sockers and Texans had sought payments for Michael Bradley and Clint Dempsey, respectively. Because the DRC did not issue published opinions, the reasoning behind each decision remains unknown. But speculation is that both clubs lacked adequate documentation showing the players were ever registered with them.

Despite ruling on the Bradley and Dempsey claims, the DRC still has not addressed the most-publicized solidarity case in US soccer: Crossfire Premier’s claim regarding DeAndre Yedlin’s 2015 transfer to Tottenham Hotspur. And while the DRC has yet to make any evidence public, credible reports suggest Crossfire’s documentation for Yedlin is also incomplete. So in the wake of Bradley and Dempsey, the conversation now turns to how the DRC might view Crossfire’s deficiency.

On that subject, a recent DRC ruling may offer guidance. Last August, the DRC denied a claim by Nigerian club Red Tigers because they lacked documentation that the player in question —striker Emmanuel Emenike — played at the club. The facts and legal issues in this case are similar to those in Yedlin. As a result, it could provide some clues about how the DRC will evaluate Crossfire’s claim.

Verifying Solidarity

To calculate solidarity, FIFA rules require the club buying the player to carve out 5% of the transfer fee and distribute it to the player’s training clubs. Distribution is pro rata, based on the time the player was registered with each club. The buying club verifies these time periods through documents submitted by the clubs or their national federations.

Usually, the documentation comes in the form of a player passport. This is a ledger of all the clubs the player registered with since age 12 and the time period he played for them. The time period is supposed to be calculated down to the month (though the FIFA rule addressing player passports does not state that explicitly). The player’s national federation is responsible for providing his player passport to the club he is registered with.

The Emenike ruling

Red Tigers requested solidarity for Emenike’s transfer from Spartak Moscow to Fenerbahce. The basis for their claim was a player passport, submitted a year after the transfer, showing Emenike played with Red Tigers from ages 14 to 18.

Spartak and Fenerbahce completed Emenike’s €13 million transfer in August 2013. Over the next eight months, Fenerbahce received a steady trickle of player passports — four in total — from the Nigerian federation. Each one gave a slightly different account of Emenike’s club history. But the common thread was that each listed a period for which the federation had no records and another during which Emenike played for a Nigerian club called Delta Force. None mentioned Red Tigers.

In August 2014, four months after the last of these passports was submitted, Red Tigers made their solidarity claim for Emenike. The DRC’s opinion states that Red Tigers’ claim was “completed on September 20, 2016.” The opinion does not explain what “completed” means in this context. But September 20, 2016 happens to be a day after the Nigerian federation issued yet another passport for Emenike. This one placed him at Red Tigers from ages 14 through 18, and served as the basis for the club’s solidarity claim. So this sequence may mean Red Tigers first requested solidarity in August 2014, but could not produce evidence of Emenike’s registration until the new passport appeared.

To evaluate Red Tigers’ claim, the DRC panel examined two, related issues. First, it considered whether the club had established that Emenike was ever registered there. On this point, Red Tigers only submitted the five player passports, with just the September 2016 edition linking Emenike to the club. Beyond that, the histories on the other four were inconsistent. As such, the panel concluded Red Tigers “failed to submit convincing documentary evidence,” showing Emenike was registered with the club, and “for which period.”

Second, the panel considered whether Fenerbahce could be held responsible for paying Red Tigers. Here, the panel noted that, at the time of the transfer, none of Emenike’s passports listed Red Tigers. So when it came time to pay solidarity, Fenerbahce could not have established Emenike’s connection to the club “with full certainty.” Therefore, the panel held Fenerbahce could not be required to pay Red Tigers solidarity.

Based on these factors, the panel rejected Red Tigers’ claim. Specifically, it concluded that Red Tigers failed to present “consistent and clear documentary evidence” establishing (1) Emenike’s registration “beyond doubt” and (2) the amount of solidarity due.

Takeaways from Emenike and potential application to Yedlin

The hint of an evidentiary standard

In Emenike, the DRC gives some indication of the evidentiary showing clubs must make to demonstrate they once registered a player. On paper, the standard appears to be high. For example, Red Tigers’ evidence failed because it was not “beyond doubt,” “convincing” and “clear.” This language suggests the DRC will not grant a club’s solidarity claim without strong documentary evidence it registered a player.

But in practice, the evidentiary standard may be more flexible. Consider that, on its face, Red Tigers’ evidence of registration was weak and suspect. The only passport connecting Emenike to the club was an outlier among the five submitted. It was also issued under suspicious circumstances. Notably, it appeared well after Red Tigers made their claim and, thus, may have been generated to fill a gap in the club’s evidence. Consequently, a discerning panel would have been skeptical of whether Emenike played for Red Tigers. As a result, Emenike may not say much about how better, but still imperfect, evidence of registration would fare. Thus, despite its strong language, the DRC may only require future claimants to produce believable evidence.

According to reports, Crossfire has submitted better, but still imperfect, evidence. Unlike Red Tigers, Crossfire did not present conflicting passports for Yedlin. Nor did they unearth a passport at the 11th hour which, amazingly, covered its evidentiary gaps. Nonetheless, such gaps do exist. For example, Yedlin’s passport may only list the years he played for Crossfire, rather than the years and months. This would make it difficult to calculate the exact amount of solidarity due. Further, on an atmospheric level, the passport would appear less polished and, therefore, less reliable.

The other problem is that, at the time of Yedlin’s transfer, his passport only listed him as having played for Crossfire from 2008 through 2010. According to Crossfire, this omitted his first two years at the club — 2006 and 2007. While the USSF updated the passport, it is unclear how the DRC will view the new information. Thus, even if Crossfire win some solidarity, they may not get the full amount requested.

Still, unlike Red Tigers, Crossfire have an undisputed passport showing Yedlin played for the club. This gives them a better chance of earning at least a portion of their solidarity claim.

Fairness to the Buying Club

As Emenike demonstrates, the DRC considers whether it would be fair to make the buying club pay solidarity. This issue could be a flashpoint in Yedlin.

In Emenike, the panel was troubled by the idea of Fenerbahce paying solidarity to Red Tigers, given how they were diligent about their financial obligations. Specifically, at the time of the transfer, Fenerbahce had nothing to indicate Red Tigers had a solidarity claim. So they paid the full amount due under their transfer agreement with Spartak and distributed that amount in compliance with FIFA’s rules. As such, tagging them with a further obligation to pay Red Tigers solidarity would have been harsh.

In Yedlin, Spurs have a similar argument. Like Fenerbahce, they appear to have acted in good faith, reaching out to Crossfire about solidarity and only withdrawing their promise to pay after MLS claimed (perhaps erroneously) that solidarity violated US law. Also like Fenerbahce, Spurs distributed all funds due for the transfer, meaning any further solidarity would go beyond the agreed-upon fee for Yedlin. On the other hand, Spurs’ conduct differed from Fenerbahce’s in that, at the time of the transfer, they knew about Yedlin’s connection to Crossfire. So their fairness argument is not a sure winner.

The facts in Yedlin may also present fairness questions Emenike did not touch. Namely, what duty did Spurs have to investigate information that may have cast doubt on Crossfire’s right to solidarity? Take the shoddy player passport. Should Spurs have tried to determine the exact dates Yedlin played at Crossfire? There was also MLS’ assertion that, under US law, Crossfire could not receive solidarity. Should Spurs have accepted that position at face value? These issues bear on whether Spurs withheld solidarity based on a legitimate belief that they could not pay it.

Bottom Line

Emenike (and maybe, Dempsey and Bradley) frame the documentation issue. But some of Yedlin’s unique facts may mean the case will break new ground. Either way, Yedlin has grown into a larger case than originally envisioned, with the DRC’s ruling having the potential to impact several issues — some not confined to the United States.