Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 1 March 2012,
in the following composition:
Geoff Thompson (England), Chairman
Michele Colucci (Italy), member
Johan van Gaalen (South Africa), member
Ivan Gazidis (England), member
Mohamed Mecherara (Algeria), member
on the claim presented by the club,
Club A, from country P,
as Claimant
against the club,
Club B, from country Q
as Respondent
regarding a solidarity contribution dispute in connection with
the transfer of the player A
I.
Facts of the case
1.
In accordance with the player passport issued by the country P Football Federation
the country P player A (hereinafter: the player), was registered as an amateur with
the club A from country P (hereinafter: the Claimant), as from
30 March 1995 until 3 September 1998.
2.
The season in the country P Football Federation runs from 1 August until 31 July of
the following year.
3.
According to the country B Football Federation, the player was registered with its
affiliated club, Club B (hereinafter: the Respondent), on 1 February 2006.
4.
On 27 March 2007, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from Club C,
from country P, to the Respondent in January 2006 for the alleged amount of EUR
50,000. In particular, the Claimant requested the payment of an amount of EUR
2,500 corresponding to 5% of the pertinent transfer compensation as well as the
payment of default interest.
5.
On 5 April 2007, the Respondent held to be willing to pay the amount of EUR
1,000 as solidarity contribution and only awaiting for an invoice with the
Claimant’s bank details.
6.
On 30 October 2007, the Claimant submitted its comments accepting to receive the
amount of EUR 1,000 as solidarity contribution.
7.
On 18 February 2008, the Respondent informed FIFA that the relevant payment
had been done in favour of the Claimant, attaching a copy of a “bank order”
dated 28 November 2007.
8.
Subsequently, the Claimant denied having received the relevant payment of
EUR 1,000 and submitted a statement from its bank confirming that, in the period
between 15 November 2007 and 31 December 2007, there had been no credit
transfer amounting to EUR 1,000 transferred to its account.
9.
In this regard, the Claimant raised the issue that in accordance with the copy of
the “bank order”, the Respondent requested the payment to the account number
of the Claimant, but wrongly put as beneficiary of such transfer the legal
representative of the Claimant, which does not correspond to the account holder.
The Claimant held that because of this discrepancy, the transfer was not
completed and the payment was never received, thus insisting on receiving the
amount of EUR 1,000 plus interest at 5% per annum “since the 30th day of the
transfer”.
2
Solidarity Contribution for the transfer of the player A
(Club A, from country P, / Club B, from country Q)
10.
Even though the Respondent was invited to provide its final comments, the
Respondent failed to do so as well as to submit any further evidence regarding the
alleged payment in question.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as DRC or the
Chamber) analysed whether it was competent to deal with the present matter. In
this respect, it noted that the claim at the basis of the present case was submitted
to FIFA on 27 March 2007. Consequently, the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber (edition 2005;
hereinafter: the Procedural Rules) are applicable to the matter at hand (cf. article
21 par. 2 and 3 of the 2008 edition of the Procedural Rules in combination with
article 18 par. 2 and 3 of the Procedural Rules).
2.
Subsequently, the members of the Chamber referred to article 3 par. 1 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 in
connection with art. 22 lit.d) of the Regulations on the Status and Transfer of
Players (edition 2010), the Dispute Resolution Chamber shall adjudicate on
disputes relating to the solidarity mechanism between clubs belonging to
different associations. As a consequence, the Dispute Resolution Chamber
confirmed that it was the competent body to decide on the present litigation
involving a Club from country P and a Club from country Q, concerning the
distribution of the solidarity contribution in connection with the international
transfer of the professional player A, from a country P to a country Q club.
3.
Furthermore, and taking into consideration that the player was registered on
1 February 2006 for the Respondent, the Chamber analysed which regulations
should be applicable as to the substance of the matter. In this respect, it confirmed
that in accordance with art. 26 par. 1 and 2 of the Regulations on the Status and
Transfer of Players (editions 2010, 2009 and 2008), the 2005 edition of the
regulations, i.e. the FIFA Regulations for the Status and Transfer of Players
(hereinafter: the Regulations) is applicable to the matter in 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 and started by
acknowledging the above-mentioned facts as well as the documentation
submitted by the parties.
5.
First and foremost, the members of the Chamber went on to recall that according
to art. 21 of the Regulations in connection with Annexe 5 of the Regulations, if a
professional player moves during the course of a contract, 5% of any
compensation, not including training compensation paid to his former club, shall
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Solidarity Contribution for the transfer of the player A
(Club A, from country P, / Club B, from country Q)
be deducted from the total amount of this compensation and be distributed by
the new club as solidarity contribution to the club(s) involved in the training and
education of the player in proportion to the number of years the player has been
registered with the relevant clubs between the sporting seasons of his 12th and
23rd birthday.
6.
In this respect, the Chamber considered that it remained undisputed by the parties
that the player was transferred from Club C, to the Respondent for the amount of
EUR 50,000.
7.
In the same context, the DRC took into account that the player was registered for
the Claimant as from 30 March 1995 until 3 September 1998.
8.
In continuation, the members of the DRC took note that the Respondent offered
to pay the amount of EUR 1,000 as solidarity contribution in connection with the
relevant transfer to the Claimant and, at the same time, that the Claimant had
agreed to receive such amounts.
9.
On account of the above, the DRC underlined that it remained undisputed that
the relevant amount to be paid as solidarity contribution to the Claimant is the
sum of EUR 1,000.
10.
In continuation, the Chamber took note that the only issue to be discussed is
whether the payment of the amount agreed as solidarity compensation was
effectively paid by the Respondent to the Claimant.
11.
In this respect, the DRC took note that the Respondent alleged having carried out
the payment in the amount of EUR 1,000 to the Claimant through a bank transfer
on 28 November 2007, submitting a copy of a “bank order”. In addition, the
Chamber took note that, on the other hand, the Claimant held having never
received such payment, submitting a statement of its bank confirming such
information.
12.
In continuation, the DRC duly noted that the Claimant pointed out that the copy
of the “bank order” provided by the Respondent bears an error, since, although
the account number corresponds to its account number, the beneficiary indicated
in the relevant transfer is the representative of the Claimant.
13.
Furthermore, the members of the DRC highlighted that the Respondent failed to
submit further comments in this regard as well as to provide any further evidence,
even though invited to do so.
14.
In this context, the DRC pointed out that the Respondent did not justify the
discrepancies in the transfer request as well as it did not provide with any
documents that could demonstrate that the transfer requested was indeed
executed.
4
Solidarity Contribution for the transfer of the player A
(Club A, from country P, / Club B, from country Q)
15.
On account of all of the above, the Chamber referred to art. 12 par. 3 of the
Procedural Rules, which stipulates that any party claiming a right from an alleged
fact shall carry the burden of proof, and considered that the Respondent failed to
demonstrate that the payment of the solidarity contribution was effectively
carried out.
16.
As a consequence, the Chamber concluded that the Respondent must pay the
amount of EUR 1,000 to the Claimant as solidarity contribution for the relevant
transfer.
17.
In addition, regarding the interest claimed by the Claimant, the DRC emphasized
once again that according to art. 2 par. 1 of the Annexe 5 of the Regulations, the
deadline for payment of the solidarity contribution is 30 days after the player’s
registration. Moreover, the members of the DRC recalled that the player was
registered for the Respondent on 1 February 2006.
18.
Additionally, the DRC highlighted that, in accordance to the well-established
jurisprudence concerning the payment of interest of the Dispute Resolution
Chamber, default interest is set at a rate of 5% per annum.
19.
Based on all of the above, the members of the Dispute Resolution Chamber
unanimously concluded that the claim of the Claimant is accepted and that the
Respondent must pay to the Claimant the amount of EUR 1,000 plus 5% interest
per year on the said amount as from 4 March 2006.
*****
III. Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is accepted.
2.
The Respondent, Club B, has to pay to the Claimant, Club A, the amount of EUR
1,000, as well as 5% interest per year on the said amount as from 4 March 2006
until the date of effective payment, within 30 days as from the date of
notification of this decision.
3.
If the aforementioned sum is not paid within the aforementioned deadline, the
present matter shall be submitted, upon request, to FIFA’s Disciplinary Committee
Committee for consideration and a formal decision.
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Solidarity Contribution for the transfer of the player A
(Club A, from country P, / Club B, from country Q)
4.
The Claimant, Club A, is directed to inform the Respondent, Club B, immediately
and directly of the account number to which the remittance is to be made and to
notify the Dispute Resolution Chamber of every payment received.
*****
Note relating to the motivated decision (legal remedy):
According to art. 67 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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Solidarity Contribution for the transfer of the player A
(Club A, from country P, / Club B, from country Q)