Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 18 March 2014,
by Mr Theo van Seggelen (Netherlands), DRC judge,
on a matter between the club,
Club V, from country B
against the club,
Club G, from country C
and the club,
Club D, from country B
“as Intervening party”
regarding a solidarity contribution dispute
related to the transfer of the player S
I.
Facts of the case
1.
The confirmed that Player S, from country B (hereinafter: the player), born in
June 1986, was registered with its affiliated club, Club V (hereinafter: Club V),
as from 1 May 2004 until 31 December 2005.
2.
The sporting season in country B follows the calendar year.
3.
According to the country C Football Association, the player was registered
with its affiliate, Club G (hereinafter: Club G), on 19 July 2010.
4.
On 28 April 2011, Club V contacted FIFA requesting its proportion of solidarity
contribution, based on the transfer of the player from Club D, from country B
(hereinafter: Club D), to Club G, in the amount of 0.836% of the transfer
compensation, or USD 25,080, plus interest of 5% p.a. as from the 31st day
after the player’s registration, i.e. 24 July 2010.
5.
In its reply, Club G provided a copy of the transfer agreement, dated 24 June
2010, according to which the player has been transferred from Club D to Club
G for the total amount of USD 3,000,000 net payable by no later than 10 July
2010.
6.
Article 3.1.1. of the transfers contract stipulates that “The transfer fee is net
and exclusive of player’s bank commissions payments to Player and/or to any
third party in accordance with FIFA Regulations on the Status of Transfer of
Players, as well as to all taxes applicable or that may become applicable
according to the country C tax laws, which are to be supported exclusively
Club G”.
7.
Furthermore, Club G explained that it is aware that the solidarity contribution
has to be paid by the player’s new club; however it allegedly agreed with Club
D that the latter would pay any amounts due as solidarity contribution.
8.
In this respect, FIFA informed the parties of the respective jurisprudence
regarding the payment of solidarity contribution.
9.
In reply to the above-mentioned information, Club G suggested that Club D
should pay solidarity contribution directly to Club V.
10.
Club D provided its position on the present matter, claiming that according to
art. 3.1.1. of the transfer agreement (cf. point I.6. above) “Club G is the sole
responsible for paying the solidarity contribution without any deduction or
reimbursement from/by Club D” since “the transfer fee agreed between the
club was always net of any deduction of any nature / concept, including any
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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deduction under FIFA Regulations on the Status of Transfer of Players, such as
the solidarity contribution”.
II.
Considerations of the DRC judge
1.
First of all, the Dispute Resolution Chamber (DRC) judge analysed whether
he was competent to deal with the case at hand. In this respect, he took
note that the present matter was submitted to FIFA on 28 April 2011.
Consequently, the 2008 edition of the Rules Governing the Procedures of
the Players’ Status Committee and the Dispute Resolution Chamber
(hereinafter: Procedural Rules) is applicable to the matter at hand (cf. art.
21 par. 1 and 2 of the Procedural Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 1 and 2 of the
Procedural Rules and confirmed that in accordance with art. 24 par. 1 and
2 in combination with art. 22 lit. d) of the Regulations on the Status and
Transfer of Players (edition 2009) he is competent to decide on the present
matter relating to the solidarity mechanism between clubs belonging to
different associations.
3.
Furthermore, the DRC judge analysed which regulations should be
applicable as to the substance of the matter. In this respect, he confirmed
that in accordance with art. 26 par. 1 and 2 of the Regulations on the
Status and Transfer of Players (editions 2008 and 2009) and considering
that the player was registered with Club G on 19 July 2010, the 2009
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.
His competence and the applicable regulations having been established,
the DRC judge entered into the substance of the matter. The DRC judge
started by acknowledging the above-mentioned facts of the case as well as
the documentation on file.
5.
The DRC judge started by acknowledging that Club V requested the
payment of solidarity contribution in the amount of USD 25,080,
corresponding to 0.836% of the transfer compensation of USD 3,000,000
paid by Club G to Club D for the transfer of the captioned player, plus
interest of 5% p.a. as from the 31st day after the player’s registration.
6.
Moreover, the DRC judge acknowledged that Club G stated that it omitted
to deduct 5% of the transfer compensation it had paid to Club D, and that
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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it, therefore, requested that Club D should pay any amounts due as
solidarity contribution directly to Club V.
7.
Finally, the DRC judge observed that Club D, for its part, argued that it was
explicitly stipulated in art. 3.1.1. of the transfer agreement (cf. point I.6.
above) that “the transfer fee is net and exclusive of player’s bank
commissions payments to Player and/or to any third party in accordance with
FIFA Regulations on the Status of Transfer of Players” and that, therefore, it
would not have to pay any amount of the solidarity contribution in
connection with the transfer at stake.
8.
Having established the above, the DRC judge took note that, on the one
hand, Club G stated that it had not retained 5% of the relevant transfer
compensation and that it, thus, had paid the total amount of USD
3,000,000 to Club D. In other words, Club G asserted that it omitted to
deduct 5% of the relevant transfer compensation relating to the
distribution of the solidarity contribution. On the other hand, the DRC
judge noted that Club D asserted that it was entitled to the “net” amount
of USD 3,000,000, as stipulated in the transfer agreement.
9.
In this context, the DRC judge referred to art. 21 and art. 1 of Annexe 5 of
the Regulations which stipulate 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).
10.
In this respect, the DRC judge was eager to emphasise that the solidarity
mechanism is a principle well-established in the Regulations, from which
the parties signing a transfer agreement 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 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 compensation payable by the new club to the
former club.
11.
In this regard, the DRC judge referred to the well-established jurisprudence
of the Dispute Resolution Chamber, 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
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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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.
12.
In light of the above, the DRC judge decided that Club G is liable to pay
the relevant proportion of the 5% solidarity contribution to Club V and
that Club D must reimburse the same proportion of the 5% solidarity
contribution to Club G.
13.
In this regard, the DRC judge went on to establish the proper calculation
of the relevant proportion of solidarity contribution due to Club V.
14.
To that end, the DRC judge 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 training and educated by the club(s)
concerned.
15.
In this respect, the DRC judge recalled that the country B Football
Association had confirmed that the player, born in June 1986, was
registered with Club V as from 1 May 2004 until 31 December 2005.
16.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC judge considered that Club V is, thus, entitled to
receive solidarity contribution for the aforementioned periods, amounting
to 0.83% of the total transfer compensation.
17.
In view of all the above, the DRC judge decided that Club G must pay to
Club V the amount of USD 24,900 and that Club D must reimburse the
amount of USD 24,900 to Club G.
18.
Furthermore, and taking into consideration both the claim of Club V as
well as art. 2 par. 1 of Annexe 5 of the Regulations, the DRC judge decided
that the claim of Club V was partially accepted and that Club G has to pay,
in conformity with the longstanding practice of the DRC, interest at the
rate of 5% p.a. on the amount of USD 24,900 as from 10 August 2010 until
the date of effective payment.
19.
The DRC judge concluded its deliberations as to the substance of the
matter by rejecting any further claim of Club V.
20.
Lastly, the DRC judge referred to art. 18 par. 1 of the Procedural Rules,
according to which, in proceedings before the DRC, including the DRC
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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judge, relating to disputes regarding training compensation and the
solidarity mechanism, costs in the maximum amount of currency of country
H 25,000 are levied. It is further stipulated that the costs are to be borne in
consideration of the parties’ degree of success in the proceedings and, in
accordance with Annexe A of the Procedural Rules, the costs of the
proceedings are to be levied on the basis of the amount in dispute.
21.
In respect of the above, and taking into account that the claim of Club V
has been partially accepted, the DRC judge concluded that Club G has to
bear the costs of the current proceedings in front of FIFA.
22.
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.
23.
On that basis, the DRC judge held that the amount to be taken into
consideration in the present proceedings is USD 25,080 related to the claim
of the Club V. Consequently, the DRC judge concluded that the maximum
amount of costs of the proceedings corresponds to currency of country H
5,000 (cf. table in Annex A).
24.
Considering that the case at hand did not compose any complex factual or
legal issues and that it was adjudicated by the DRC judge and not by the
DRC, the DRC judge determined the costs of the current proceedings to the
amount of currency of country H 4,000.
*****
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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III.
Decision of the DRC judge
1.
The claim of Club V, from country B, is partially accepted.
2.
Club G, from country C, has to pay to Club V, the amount of USD 24,900
plus 5% interest p.a. as from 10 August 2010 within 30 days as from the
date of notification of this decision.
3.
In the event that the aforementioned amount plus interest is not paid
within the stated time limit, the present matter shall be submitted, upon
request, to FIFA’s Disciplinary Committee for consideration and a formal
decision.
4.
Any further claims lodged by Club V are rejected.
5.
The final costs of the proceedings in the amount of currency of country H
4,000 are to be paid by Club G within 30 days of notification of the
present decision, to FIFA to the following bank account with reference to
case no.
6.
Club V is directed to inform Club G immediately and directly of the account
number to which the remittance is to be made and to notify the DRC judge
of every payment received.
7.
The intervening party, Club D, from country B, has to reimburse the
amount of USD 24,900 to Club G within 30 days as from the date of
notification of this decision.
8.
If the aforementioned sum is not paid by Club D within the
aforementioned deadline, interest at the rate of 5% p.a. will fall due as of
expiry of the aforementioned 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 G, from country C, is directed to inform the intervening party, Club D,
immediately and directly of the account number to which the remittance is
to be made and to notify the DRC judge of every payment received.
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*****
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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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 DRC judge:
Jérôme Valcke
Secretary General
Enclosed: CAS directives
Solidarity contribution in connection with the player S
(Club V, from country B / Club G, from country C / Club D, from country B)
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