Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC)
passed in Zurich, Switzerland, on 15 March 2013,
in the following composition:
Geoff Thompson (England), Chairman
Joaquim Evangelista (Portugal), member
Carlos Soto (Chile), member
Mario Gallavotti (Italy), member
Zola Majavu (South Africa), member
on a matter between the club
Club G, from country F
and the club
Club A, from country E
and the club
Club S, from country F
as Intervening party
regarding a solidarity contribution dispute in connection
with the transfer of the player I
I.
Facts of the case
1.
The country F Football Federation confirmed that the player, Player I (hereinafter:
the player), born in January 1985, was registered with its affiliated club, Club G,
during
the
seasons
2003/2004
and
2004/2005,
i.e.
from
28 August 2003 until 15 June 2005. Equally, the country F Football Federation
confirmed that the sporting season in country F “starts on 1 July and ends on 30
June”.
2.
The country E Football Association confirmed that the player was registered with
its affiliated club, Club A, on 2 September 2010.
3.
On 2 September 2010, Club S, from country F and Club A concluded a transfer
agreement, by means of which the concerned player was transferred from Club S
to
Club
A
for
the
total
amount
of
EUR 7,000,000, payable as follows: EUR 2,500,000 on 2 September 2010,
EUR 2,500,000 on 1 September 2011 and EUR 2,000,000 on 1 September 2012.
4.
On 27 January 2011, Club G lodged a claim in front of FIFA and after amending its
claim on 25 March as well as on 25 July 2011, it claimed its proportion of the
solidarity contribution in connection with the transfer of the player from Club S to
Club A. In particular, Club G requested 20% of 5% of the transfer compensation of
EUR 7,000,000, equivalent to EUR 70,000.
5.
In its response, Club A declared being willing to distribute the relevant proportion
of the solidarity contribution to Club G. In the same context, Club A, required the
reimbursement of 5% of the transfer compensation from Club S, since it allegedly
paid the transfer compensation to the latter in full, without deducting the
solidarity contribution.
6.
In view of the above, FIFA informed the parties involved about the jurisprudence
of the Dispute Resolution Chamber applied in similar cases, according to which the
player’s new club is ordered to remit the relevant proportion(s) of the 5%
solidarity contribution to the club(s) involved in the player’s training and that at
the same time, the player’s former club is ordered to reimburse the same
proportion(s) of the 5% of the compensation that it received from the player’s
new club.
7.
Therefore, FIFA invited Club A to distribute the relevant proportion of the
solidarity contribution to Club G as well as invited Club S to reimburse Club A the
relevant proportion of 5% of the transfer compensation agreed.
8.
In reply to the aforementioned suggestion, Club S presented its position refusing
to reimburse Club A the relevant solidarity contribution. In its defence, Club S
confirmed the date of the transfer and that the parties agreed on a transfer
compensation in the amount of EUR 7,000,000 payable in instalments (cf. point
I.3.). Additionally, Club S referred to the third article of the transfer agreement,
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
2/8
which allegedly quoted that “All taxes and expenses, including those relating to
the FIFA rules (5% solidarity contribution) will be borne by the new club (Club A)
and will not be deducted from the above transfer fee”. In its support Club S
enclosed a document from the Transfer Matching System (TMS) related to the
relevant transfer as evidence. In this regard, Club S pointed out that said TMS
document specified that the solidarity contribution is to be paid on top of the
respective amount of each instalment. On account of the above, Club S alleged
that Club A is the only responsible to pay the solidarity contribution to the clubs
involved in the player’s training.
II.
Considerations of the Dispute Resolution Chamber
1.
First of all, the Dispute Resolution Chamber (hereinafter referred to as DRC or
Chamber) analysed whether it was competent to deal with the case at hand. In
this respect, it took note that the present matter was submitted to FIFA on
27 January 2011. Consequently, the 2008 edition of the Rules Governing the
Procedures of the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: the Procedural Rules) is applicable to the matter at hand (cf. art. 21
par. 2 and par. 3 of the Procedural Rules).
2.
Subsequently, the DRC referred to art. 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 2012) the Dispute
Resolution Chamber shall adjudicate on disputes relating to solidarity mechanism
between clubs belonging to different associations in connection with an
international transfer of a professional player. As a consequence, the DRC
confirmed that it is competent to decide on the present litigation involving a
country F club and an country E club as well as concerning the distribution of
solidarity contribution in connection with the international transfer of the player,
Player I from a country F club to an country E club.
3.
Furthermore, and taking into consideration that the player was registered with his
new club on 2 September 2010, the DRC 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 par. 2 of the Regulations on the Status and
Transfer of Players (editions 2012, 2010 and 2009), the 2009 version of said
Regulations (hereinafter: the Regulations) is applicable to the present matter as to
the substance.
4.
The competence of the DRC and the applicable Regulations having been
established, the DRC 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.
In this regard, the DRC started by acknowledging that Club G is requesting
solidarity contribution in the amount of EUR 70,000 based on an alleged transfer
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
3/8
compensation of EUR 7,000,000 allegedly paid by Club A to Club S in connection
with the international transfer of the concerned player.
6.
In this respect, the Chamber first of all emphasised that, as established in art. 21 in
conjunction with Annexe 5 of the Regulations, if a professional moves during the
course of a contract, 5% of any compensation, not including training
compensation paid to his former club, shall be deducted from the total amount of
this compensation and 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 seasons of his 12th and 23rd birthday.
7.
In continuation, the DRC took note that, on the one hand, Club A, in its reply to
the claim lodged by Club G, stated being willing to distribute the relevant
proportion of solidarity contribution to the latter. Equally, the Chamber noticed
that Club A required the reimbursement of 5% of the transfer amount from Club
S, since it had not retained 5% of the transfer compensation, corresponding to the
solidarity contribution. In other words, Club A asserted that it omitted to deduct
5% of the relevant transfer compensation relating to the distribution of the
solidarity contribution.
8.
On the other hand, the DRC noted that Club S confirmed the transfer terms by
enclosing a TMS document and affirmed that any and all solidarity contributions
were due by Club A, since the third article of the transfer agreement, allegedly
quoted that “All taxes and expenses, including those relating to the FIFA rules (5%
solidarity contribution) will be borne by the new club (Club A) and will not be
deducted from the above transfer fee”.
9.
Taking into account the above arguments, the DRC observed that the main issue
in the current matter is that Club S is of the opinion that the total amount of EUR
7,000,000 is due to it and that, in accordance with the third article of the transfer
agreement, Club A had to pay, on top of the total transfer compensation of EUR
7,000,000, the relevant amounts concerning solidarity contribution to the club(s)
involved in the training and education of the player.
10.
In this context, the Chamber referred again to art. 21 and art. 1 of Annexe 5 of the
Regulations which clearly stipulates that “if a professional moves during the
course of a contract, 5% of any compensation, not including training
compensation paid to his former club, shall be deducted from the total amount of
this compensation (…) “ (emphasis added).
11.
In this respect, the DRC was eager to emphasize that the solidarity mechanism is a
principle well-established in the Regulations, from which the parties signing a
transfer or loan contract cannot derogate through the contents of a contract. In
other words, the obligation to distribute solidarity contribution cannot be set
aside by means of a contract concluded between the clubs involved in a player’s
transfer. Thus, as for the distribution of the solidarity contribution, the amount to
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
4/8
be taken into account when calculating the solidarity contribution payments due
to the club(s) involved in the player’s education and training, is the amount
actually agreed upon as the total compensation payable by the new club to the
former club, regardless of any provision to the contrary stipulated in the transfer
or loan contract.
12.
In this regard, the members of the Chamber considered that if the interpretation
of Club S of the transfer agreement would be followed and Club S’ argument that
Club A should pay Club S the total compensation of EUR 7,000,000 without
deducting any amount(s) in conformity with the rules regarding solidarity
contribution, it would mean that, in the present matter, the amount of
EUR 7,000,000 would constitute 95% of the total amount of compensation for the
transfer of the player. Consequently, Club A would be responsible to pay the
remaining part of 5% to the club(s) involved in the training and education of the
player. The DRC stressed that would this line be followed, the total amount of
compensation would be EUR 7,368,421, which, evidently, would be different from
the terms of the loan agreement signed between the clubs involved in the transfer
of the player, which, as stated before, in fact agreed upon a transfer
compensation of EUR 7,000,000. Consequently, the Chamber considered that
would the solidarity contribution be calculated in the way Club S argued, the 5%
solidarity contribution would, according to the Regulations, then be calculated on
the basis of EUR 7,368,421 instead of EUR 7,000,000, a calculation which, in the
view of the members of the Chamber, is incorrect as such an approach as to the
calculation of the solidarity contribution would destabilize the entire system of
the solidarity mechanism and would undermine the legal certainty the
Regulations provide. Therefore, a strict application of the rules regarding
solidarity contribution should be followed and, hence, 5% should have been
deducted from the EUR 7,000,000 and distributed to the club(s) involved in the
player’s training and education.
13.
Subsequently and directly related to the above, the DRC referred to the wellestablished jurisprudence of the DRC which has to be applied in the present
matter, in accordance with which the player’s new club is ordered to remit the
relevant proportion(s) of the 5% solidarity contribution to the club(s) involved in
the player’s training and education in strict application of art. 1 and art. 2 of
Annexe 5 of the Regulations. At the same time, according to said well-established
jurisprudence, the player’s former club is ordered to reimburse the same
proportion(s) of the 5% of the compensation that it received from the player’s
new club.
14.
In light of the above, the Chamber decided that Club A is liable to pay the
relevant proportion of the 5% solidarity contribution to Club G and that Club S
must reimburse the same proportion of the 5% solidarity contribution to Club A.
15.
In this regard, having confirmed the above-mentioned obligation incumbent on
Club A, the DRC went on to establish the proper calculation of the relevant
proportion of solidarity contribution due to Club G.
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
5/8
16.
To that end, the members of the DRC referred 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.
17.
In this respect, the Chamber recalled that the country F Football Federation had
confirmed that the player, born in January 1985, was registered with Club G as
from 28 August 2003 until 15 June 2005 as well as that the transfer compensation
to take into account amounts to EUR 7,000,000.
18.
Consequently, the DRC established that, in accordance with the breakdown
provided for in art. 1 of Annexe 5 of the Regulations, Club G is entitled to receive
17.69% of 5% of the compensation paid by Club A to Club S, i.e. 17.69% of 5% of
EUR 7,000,000.
19.
In view of all the above, the members of the DRC decided that Club A must pay to
Club G the amount of EUR 61,915 and that Club S must reimburse the amount of
EUR 61,915 to Club A.
20.
The Chamber concluded its deliberations as to the substance of the matter by
rejecting any further claim of Club G.
21.
Additionally, the members of the Chamber 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 currency of country H 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.
22.
In respect of the above, and taking into account that the claim of the Claimant has
been partially accepted, the DRC concluded that the costs of the current
proceedings before FIFA have to be split between the parties.
23.
Furthermore and according to Annex A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
24.
On that basis, the DRC held that the amount to be taken into consideration in the
present proceedings is EUR 70,000 related to the claim of Club G. Consequently,
the members of the DRC concluded that the maximum amount of costs of the
proceedings corresponds to currency of country H 10,000 (cf. table in Annex A).
25.
In conclusion and in view of the circumstances of the present matter as well as
that the case at hand was adjudicated by the DRC, the members of the Chamber
determined the costs of the current proceedings to the amount of currency of
country H 8,000. Consequently, the DRC decided that the amount of currency of
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
6/8
country H 4,000 has to be paid by Club G and that the amount of currency of
country H 6,000 has to be paid by Club A in order to cover the costs of the present
proceedings.
*****
III.
Decision of the Dispute Resolution Chamber
1.
The claim of Club G is partially accepted.
2.
Club A has to pay to Club G the amount of EUR 61,915 within 30 days as from
the date of notification of the present decision
3.
In the event of non-payment of the aforementioned amount by Club A, within the
established deadline, interest at the rate of 5% p.a. will apply on said amount as
of expiry of the stipulated time limit and the present matter shall be submitted,
upon request, to the FIFA’s Disciplinary Committee for consideration and a formal
decision.
4.
The final amount of costs of the proceedings in the amount of currency of country
H 8,000 is to be paid within 30 days of notification of the present decision as
follows:
4.1
The amount of currency of country H 2,000 is to be paid by Club G, which has
already been paid as advance of costs.
4.2
The amount of currency of country H 6,000 is to be paid by the Club A to
FIFA to the following bank account with reference to case no. [XX-XXXXX]:
5.
Any further claims lodged by Club G are rejected.
6.
Club G is directed to inform Club A immediately and directly of the account
number to which the remittance of the amount under the point 2 is to be made
and to notify the Dispute Resolution Chamber of every payment received.
7.
The intervening party, Club S, has to reimburse the amount of
EUR 61,915 to Club A within 30 days as from the date of notification of the
present decision.
8.
In the event of non-payment of the aforementioned amount by Club S, within the
established deadline, an interest rate of 5% p.a. will apply on said amount as of
expiry of the stipulated time limit and the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for its consideration and a formal
decision.
9.
Club A is directed to inform Club S immediately and directly of the account
number to which the remittance is to be made and to notify the Dispute
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
7/8
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
Solidarity contribution in connection with the transfer the player I
(Club G, from country F / Club A, from country E / Club S, from country F)
8/8