Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 19 February 2015,
in the following composition:
Thomas Grimm (Switzerland), Deputy Chairman
Joaquim Evangelista (Portugal), member
Theodore Giannikos (Greece), member
on the matter involving the club,
Club A, Country B,
as Claimant
and the club,
Club C, Country D
as Respondent
and the club,
Club E, Country B,
as Intervening party
regarding solidarity contribution in connection with the transfer
of the Player F
I.
Facts of the case
1.
According to the player passport issued by the Football Federation of Country B on 7
January 2013 (hereinafter: player passport n°1), the Player of Country B, Player F
(hereinafter: the player), born on 13 August 1992, was registered with its affiliated
club, Club E, from 14 August 2008 until 19 December 2012.
2.
Pursuant to the player passport issued by the Football Federation of Country B on 19
February 2013 (hereinafter: player passport n°2), the player was registered with the
following clubs:
- Club A (hereinafter: the Claimant) from 1 January 2004 until 31 December 2005;
- Club E from 23 March 2006 until 19 December 2012.
3.
The Football Federation of Country B also confirmed that the sporting season in
Country B follows the calendar year.
4.
According to a written confirmation from the Football Federation of Country D, the
player was registered with its affiliated club, Club C (hereinafter: the Respondent),
on 7 January 2013.
5.
On 9 September 2013, the Claimant lodged a claim before FIFA against the
Respondent, claiming its proportion of the solidarity contribution in connection with
the transfer of the player from Club E to the Respondent. In this respect, the
Claimant requested 10% of the 5% solidarity contribution, equivalent to EUR
215,000, plus 5% interest “as from 30 (thirty) days after the registration of the
player”.
6.
Pursuant to the transfer agreement uploaded in the Transfer Matching System
(TMS), the transfer compensation agreed upon between Club E and the Respondent
amounted to EUR 43,000,000, composed of the following two instalments:
- EUR 32,000,000 due by 18 January 2013;
- EUR 11,000,000 due by 16 February 2013.
7.
Article 2.2. of the above-mentioned transfer agreement stipulates that “it is
expressly agreed between the Parties that the Transfer Fee comprises and includes
any training and educational allowances as well as the part of solidarity contribution
which may be due to Club E as a result of the Transfer (…). Club E declares and
warranties that it is the only former club of the Player, since the season of his 12
years old to the date of signature of the Agreement”.
8.
In its statement of defence, the Respondent sustained that it acted in good faith. In
particular, the Respondent maintained having paid the 5% solidarity contribution to
Club E – together with the transfer compensation – upon arrival of the player and
on the basis of the player passport n°1, according to which Club E appeared to be
the only training club.
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9.
Subsequently, the Respondent explained that on 25 February 2013, the Claimant
contacted the Respondent, requesting its portion of the solidarity contribution and
providing the player passport n°2 in support of its claim. After the Football
Federation of Country B confirmed the authenticity of the player passport n°2 on 13
May 2013, the Respondent then asked Club E on two occasions, i.e. on 24 May 2013
and 27 February 2014, the reimbursement of the amount of EUR 239,275
corresponding to the period as from 1 January 2004 until 22 March 2006.
10. In this context, and in the event the Claimant is effectively entitled to its portion of
the solidarity contribution, the Respondent requests FIFA the following:
- either the Claimant turns to Club E directly in order to collect the amount allegedly
due as solidarity contribution;
- or the Respondent pays the Claimant its portion of the solidarity contribution only
after the reimbursement by Club E of the amount in dispute.
11. Upon FIFA’s request, Club E provided its position to the matter at stake. Club E holds
having questioned the Football Federation of Country B on 6 August 2014 regarding
the discrepancy of both player passports. On 25 August 2014, the Football
Federation of Country B sent a correspondence to Club E in which it admitted having
altered the player passport, based inter alia on documentation received from
“Football Association of City of Country B” which apparently informed the Football
Federation of Country B that the player played for the Claimant in competitions
organized by the Football Association of City of Country B in 2004 and 2005.
12. Moreover, Club E states that, except the player passport n°2, the Claimant did not
provide any evidence of the player being registered with it. Club E further stresses
that Football Association of City of Country B is not affiliated to the Football
Federation of Country B and therefore, is not part of the “organised football” as
referred to in FIFA Regulations on the Status and Transfer of Players. Club E
consequently considers that any participation of the player in the competitions of
Football Association of City of Country B is irrelevant for solidarity contribution
purposes.
13. On account of the foregoing, Club E deems that the Claimant is not entitled to
receive solidarity contribution.
14. Upon FIFA’s request, the Football Federation of Country B confirmed that the player
passport n°2 is the correct one, alleging that, in the player passport n°1, it had not
included the seasons in which the player played as an amateur and thus, the
complete and correct one is the player passport n°2.
II.
Considerations of the Dispute Resolution Chamber
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1.
First of all, the Dispute Resolution Chamber (hereinafter also referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In this
respect, the Chamber took note that the present matter was submitted to FIFA on 9
September 2013. Consequently, the Rules governing the procedures of the Players’
Status Committee and the Dispute Resolution Chamber (edition 2012; hereinafter:
Procedural Rules) are applicable to the matter at hand (cf. art. 21 par. 1 and par. 2
of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to art. 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in conjunction
with art. 22 lit. d) of the Regulations on the Status and Transfer of Players (edition
2014), the Dispute Resolution Chamber is competent to decide on the present
matter, which concerns a dispute relating to the solidarity mechanism between
clubs belonging to different associations.
3.
Furthermore, the DRC analysed which edition of the Regulations on the Status and
Transfer of Players should be applicable as to the substance of the matter. In this
respect, the members referred, on the one hand, to art. 26 par. 1 and 2 of the
Regulations on the Status and Transfer of Players (editions 2012 and 2014) and, on
the other hand, to the fact that the present claim was lodged on 9 September 2013
and that the player was registered with the Respondent on 7 January 2013. In view
of the aforementioned, the Chamber confirmed that the 2012 edition of the
Regulations on the Status and Transfer of Players (hereinafter: Regulations) is
applicable to the matter at hand as to the substance.
4.
The competence of the Chamber and the applicable regulations having been
established, the Chamber entered into the substance of the matter. In this respect,
the Chamber started by acknowledging all the above-mentioned facts as well as the
arguments and the documentation submitted by the parties. However, the Chamber
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.
5.
In this respect, the DRC noted that the Claimant claimed the payment of the
amount of EUR 215,000 as solidarity contribution from the Respondent,
corresponding to 10% of the 5% solidarity contribution.
6.
In addition to the above, and referring to art. 6 par. 3 of Annexe 3 of the
Regulations, the Chamber took into account that according to the information
contained in the TMS, Club E and the Respondent agreed upon a transfer
compensation of EUR 43,000,000 payable in two instalments, i.e. EUR 32,000,000
due by 18 January 2013 and EUR 11,000,000 due by 16 February 2013.
7.
Furthermore, the DRC noted that the Respondent deems that the Claimant is not
entitled to receive any solidarity contribution arguing that it paid the 5% solidarity
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contribution to Club E, based on the player passport n°1 which indicated Club E as
being the only training club, and that the Claimant requested its portion of the
solidarity contribution thereafter, on the basis of the player passport n°2.
8.
In view of the above, the Chamber deemed fundamental to refer to the timeline of
events in order to determine whether the Claimant is entitled to solidarity
contribution. First of all, the DRC recalled that, on 7 January 2013, the player was
transferred from Club E to the Respondent. According to the transfer agreement,
the transfer compensation was payable in two instalments, the last instalment of
EUR 11,000,000 being due by 16 February 2013. The DRC further observed that the
due amount as transfer compensation, which the Respondent stated having paid to
Club E upon arrival of the player and which was uncontested by the other parties
involved, included the 5% solidarity contribution in accordance with the player
passport n°1.
9.
In continuation, the members of the Chamber took due note that, on 25 February
2013, the Claimant requested the Respondent its portion of the 5% solidarity
contribution, as per the player passport n°2 which was issued on 19 February 2013,
i.e. after the transfer compensation of EUR 43,000,000 became due and was paid.
10.
In view of the aforementioned, and irrespective of the subsequent confirmation of
the Football Federation of Country B regarding the validity of the player passport
n°2, the DRC carefully considered that by the time the transfer compensation fell
due and was paid, the only training club entitled to solidarity contribution, as per
the player passport n°1, was Club E.
11.
In light of all the foregoing, the Chamber concluded that the Respondent could rely
in good faith on the player passport n°1 and reasonably assume that the player had
not been trained by any other club than Club E.
12.
On the basis of all these considerations, the DRC unanimously concluded that the
claim of the Claimant for the solidarity contribution must be rejected.
13.
As a final remark, the members of the Chamber referred the parties to the Football
Federation of Country B in order to seek further clarification with regard to the
discrepancies between the relevant player passports.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant is rejected.
2.
The final costs of the proceedings in the amount of CHF 12,000 are to be paid by the
Claimant to FIFA, CHF 5,000 of which have already been paid as advance of costs at
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the start of the present proceedings. Consequently, the additional amount of CHF
7,000 is to be paid by the Claimant to FIFA within 30 days of notification of the
present decision, to the following bank account:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
*****
Note relating to the motivated decision (legal remedy):
According to art. 63 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
Avenue de Beaumont 2
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 Dispute Resolution Chamber:
________________________
Jérôme Valcke
Secretary General
Encl. CAS directives
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