Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber (DRC) judge
passed in Zurich, Switzerland, on 17 March 2015,
by Theo van Seggelen (Netherlands), DRC judge,
on the matter between the club,
Club A, from country B
against the club,
Club C, from country B
and the club,
Club D, from country E
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 from country B,
the player from country B, Player F (hereinafter: the player), born on 10 May 1985,
was registered with Club A:
-
From 5 December 2002 until 11 December 2005
From 1 July 2006 until 9 July 2006, and
From 1 July 2007 until 15 January 2008.
2.
The football season in country B follows the calendar year.
3.
On 7 February 2013, the player’s International Transfer Certificate (ITC) was delivered
by the Football Association from country E to the Football Federation from country B.
4.
According to the information contained in the Transfer Matching System (TMS), the
club from country E, Club D, and the club from country B, Club C, agreed on the
transfer of the player from Club D to Club C. In particular, said clubs agreed that Club
C would pay Club D a transfer compensation amounting to EUR 5,500,000, as follows:
-
EUR 3,000,000 due on 6 February 2013;
EUR 2,500,000 due on 31 August 2013.
5.
Art. 8.1 and 8.2 of the transfer agreement stipulate that: “Conditioned upon the
payments of both instalments in due dates and as set out in sub-clause 2.2 above,
Gharafa undertakes to distribute the solidarity contribution amount to the clubs (….).
The obligation, supra, however, shall relay on [Club C] in the event the payments as
stated in sub-clause 2.2 above are not fulfilled within the due dates.”
6.
On 19 February 2013, Club A lodged a claim for the payment of solidarity
contribution in front of FIFA against Club C, which it amended on 13 November 2013,
requesting the amount of EUR 99,000 from Club C, equivalent to 1,8% of the total
transfer compensation.
7.
In its reply, Club C stated that Club D is the party responsible for the payment of the
solidarity contribution.
8.
Nevertheless, should the DRC decide that Club C is responsible for the payment of the
solidarity contribution, Club C asserted that the amount of solidarity contribution has
to be reduced because the player’s training period ended before his 18th birthday.
9.
Finally, and “ad argumentandum”, Club C requests that “in an extreme situation of
acceptance of the referred claim, condemn only Club D to pay the amount requested
by [Club A].”
Solidarity contribution for the Player F
(Club A, from country B / Club C, from country B / Club D, from country E)
page 2 of 7
10.
On 17 June 2013, Club D stated that it is not responsible to pay the solidarity
contribution, since, in their view:
- Club A did not mention the amount in dispute;
- Art. 8.1 and 8.2 of the transfer agreement stipulate that Club D is only responsible
for the payment of the solidarity contribution in case all instalments were paid. On
17 June 2013, the second installment of the transfer fee did not fall due yet.
11.
On 22 November 2013, Club D reverted to FIFA stating that Club C had not paid the
second instalment and, as a result, it had lodged a claim against Club C for breach of
contract on 18 November 2013. In this respect, Club D held that it “is no longer liable
to reimburse the amounts due as solidarity contribution to Club C since the latter
failed to fulfil its obligations towards the transfer agreement (…)”.
II.
Considerations of the DRC judge
1.
First of all, the 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 19 February 2013. Consequently, the DRC judge concluded that the 2012 edition of
the Rules Governing the Procedures of the Players’ Status Committee and the Dispute
Resolution Chamber is applicable to the matter at hand (cf. art. 21 of the Procedural
Rules).
2.
Subsequently, the DRC judge referred to art. 3 par. 2 of the Procedural Rules, which
states that the DRC judge shall examine his jurisdiction in light of art. 24 par. 2 of the
Regulations on the Status and Transfer of Players. In accordance with art. 24 par. 1
and par. 2 lit. ii. in connection with art. 22 lit. e) of the Regulations on the Status and
Transfer of Players, the DRC judge decided he is competent to decide on the present
matter relating to a dispute regarding the solidarity mechanism between clubs
belonging to the same association where the transfer at the basis of the dispute
occurs between clubs belonging to different associations.
3.
In continuation, the DRC judge analysed which edition of the Regulations on the
Status and Transfer of Players is applicable as to the substance of the matter. In this
respect, and taking into consideration that the player was registered with Club C on 7
February 2013, he confirmed that in accordance with art. 26 of the Regulations on the
Status and Transfer of Players, the 2012 version of said regulations (hereinafter: the
Regulations) is applicable to the present matter as to the substance.
4.
The competence of the DRC judge and the applicable regulations having been
established, and entering into the substance of the matter, the DRC judge started by
acknowledging the above-mentioned facts as well as the documentation contained in
the file. However, the DRC judge emphasised that in the following considerations he
will refer only to the facts, arguments and documentary evidence which he
considered pertinent for the assessment of the matter at hand.
Solidarity contribution for the Player F
(Club A, from country B / Club C, from country B / Club D, from country E)
page 3 of 7
5.
In this respect, the DRC judge first of all noted that Club A is claiming solidarity
contribution corresponding to 1,8% of the total transfer compensation, equivalent to
EUR 99,000.
6.
Furthermore, the DRC judge observed that Club C held that it was not responsible for
the payment of solidarity contribution since, in accordance with art. 8.1 and 8.2 of the
transfer agreement it is Club D that is responsible to pay solidarity contribution to
Club A.
7.
Moreover, the DRC judge observed that Club C held that should the DRC judge decide
that Club C is responsible for the distribution of the solidarity contribution, Club A is
only entitled to a reduced amount since the player’s training ended before his 18th
birthday.
8.
In this framework, the DRC judge 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 a 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 club(s) between the
seasons of his 12th and 23rd birthday.
9.
The DRC judge remarked that therefore, in accordance with the clear content of the
Regulations, it is the responsibility of the new club to distribute the amounts
pertaining to solidarity contribution.
10.
In this context, and while referring to art. 8.1 and 8.2 of the transfer agreement, the
DRC judge recalled that the solidarity mechanism is a principle well-established in the
Regulations, from which the parties agreeing on a transfer cannot derogate through
the content of a transfer agreement. He further clarified that a training club has
neither a contractual link with the former club nor with the new club and is obviously
not a party to the transfer agreement concluded between the former and the new
club. Thus, the DRC judge reiterated that the obligation to distribute solidarity
contribution cannot be set aside, or amended, by means of an agreement concluded
between the clubs involved in a player’s transfer. A different approach would
destabilize the entire system of the solidarity mechanism and would undermine the
legal certainty the Regulations provide.
11.
By way of explanation, the DRC judge further emphasised that a club’s entitlement to
solidarity contribution finds its legal basis in the Regulations and, in accordance with
the Regulations, it is the new club that is responsible for the distribution of the
solidarity contribution. Should no solidarity contribution have been paid in
accordance with the Regulations, the relevant training club can lodge a claim against
the new club, however, there is no provision in the Regulations which would provide
a legal basis for a claim against the former club.
Solidarity contribution for the Player F
(Club A, from country B / Club C, from country B / Club D, from country E)
page 4 of 7
12.
On account of all of the above, the DRC judge concluded that it is Club C alone which
is responsible for the distribution of the solidarity contribution to the clubs involved
in the training and education of the player.
13.
As to Club C’s argument that the amount due to Club A should be reduced since the
player’s training ended before his 18th birthday, the DRC judge stressed that such
argument cannot be validly invoked in relation to the payment of solidarity
contribution, which is a concept different from training compensation, and which has
as an objective that a solidarity payment is paid to all clubs that have contributed to
the training and education of the player between the season of the player’s 12th and
23rd birthday. Hence, for the provisions regarding solidarity contribution it is
irrelevant whether a particular player already ended his training period.
14.
In continuation, the DRC judge turned to the calculation of the amount of solidarity
contribution due to Club A.
15.
In this respect, the DRC judge recalled that the Football Federation from country B
had confirmed that the player, born on 10 May 1985, was registered with Club A as
from 5 December 2002 until 11 December 2005, from 1 July 2006 until 9 July 2006,
and from 1 July 2007 until 15 January 2008.
16.
This means that the player was registered with Club A for 1 month during the season
of his 17th birthday (0,83%), the complete seasons of his 18th and 19th birthday (20%),
11 months during the season of his 20th birthday (9,16%) and 6 months during the
season of his 22nd birthday (5%). This results in a total entitlement for Club A of
34,99% of the 5% solidarity contribution.
17.
Taking into account the above-mentioned percentage as well as that the transfer
compensation in the present dispute amounts to EUR 5,500,000, Club A is entitled to
an amount of EUR 96,222.50.
18.
As a result, the DRC judge determined that Club C has to pay the amount of EUR
96,222.50 to Club A.
19.
Lastly, the DRC judge referred to art. 25 par. 2 of the Regulations in combination with
art. 18 par. 1 of the Procedural Rules, according to which, in proceedings before the
DRC, including the DRC judge, relating to disputes regarding training compensation
and the solidarity mechanism, costs in the maximum amount of CHF 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 (cf. art. 18 par. 1 of the Procedural
Rules).
20.
In respect of the above, and taking into account that Club A has been the successful
party, the DRC judge concluded that Club C has to bear the costs of the current
Solidarity contribution for the Player F
(Club A, from country B / Club C, from country B / Club D, from country E)
page 5 of 7
proceedings in front of FIFA. 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.
21.
On that basis, the DRC judge held that the amount to be taken into consideration in
the present proceedings is EUR 99,000 related to the claim of Club A. Consequently,
the DRC judge concluded that the maximum amount of costs of the proceedings
corresponds to CHF 10,000 (cf. table in Annex A).
22.
Considering that the case at hand did involve some complex factual issues, the DRC
judge determined the costs of the current proceedings to the amount of CHF 10,000,
which shall be borne by Club C.
*****
III.
Decision of the DRC judge
1.
The claim of Club A is partially accepted.
2.
Club C has to pay to Club A the amount of EUR 96,222.50, within 30 days as from
the date of notification of this decision.
3.
In the event that the aforementioned sum is not paid within the stated time limit,
interest of 5% p.a. falls due as of expiry of the stipulated time limit and the present
matter shall be submitted, upon request, to FIFA’s Disciplinary Committee for
consideration and a formal decision.
4.
Any further claim lodged by Club A is rejected.
5.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid by Club
C within 30 days of notification of the present decision, as follows:
5.1.
The amount of CHF 8,000 to FIFA to the following bank account with reference
to case no.:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2.
6.
The amount of CHF 2,000 to Club A.
Club A is directed to inform Club C immediately and directly of the account number
to which the remittances are to be made and to notify the DRC judge of every
payment received.
*****
Solidarity contribution for the Player F
(Club A, from country B / Club C, from country B / Club D, from country E)
page 6 of 7
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 for the Player F
(Club A, from country B / Club C, from country B / Club D, from country E)
page 7 of 7