Solidarity Contribution
Texto da decisão
Decision of the
Dispute Resolution Chamber
passed in Zurich, Switzerland, on 18 March 2016,
in the following composition:
Geoff Thompson (England), Chairman
Philippe Piat (France), member
John Bramhall (England), member
Theodore Giannikos (Greece), member
Zola Percival Majavu (South Africa), member
on the claim presented by the club,
Club A, country B
as Claimant
against the club,
Club C, country D
as Respondent
regarding solidarity contribution in connection with the transfer
of the Player E
I.
Facts of the case
1.
According to the player passport issued by the Football Association of country B,
the player, Player E (hereinafter: player), born on 11 October 1987, was
registered with its affiliated club, Club A (hereinafter: Claimant) as follows:
-
2.
from 15 March 2001 until 21 June 2004 as amateur;
from 22 June 2004 until 3 August 2005 as a professional.
In addition, the Football Association of country B confirmed that the sporting
season in country B runs as follows:
a) for amateurs (under 20 years of age) from January to December of the
relevant year; and
b) for amateurs (more than 20 years of age) and professionals from 1 July
until 30 June of the following year.
3.
According to the information contained in the Transfer Matching System (TMS),
the club from country B, Club F, and the club from country D, Club C
(hereinafter: Respondent) concluded a transfer agreement, on 31 July 2012, by
means of which the parties agreed upon a transfer compensation amounting to
USD 2,700,000 payable as follows:
-
USD 400,000 “within twenty-four hours from the signature of this
agreement”;
USD 650,000 on 20 December 2012;
USD 1,000,000 on 20 June 2013;
USD 650,000 on 20 December 2013.
Moreover, Club F and the Respondent also agreed on a “Variable Transfer
Price” of USD 200,000, “which shall accrue at every opportunity Club C’s Team is
classified as champion of the league of country D limit, until the end of
2015/2016 Football season”.
A further payment of USD 600,000 as “Transfer Expenses”, payable twenty-four
hours from the signature, was agreed upon.
4.
According to the TMS, the player was registered with the Respondent on 14
August 2012.
5.
On 1 July 2014, the Claimant contacted FIFA claiming its proportion of the
solidarity contribution in connection with the transfer of the player from Club F
to the Respondent. In particular, the Claimant requested 1,75% of the transfer
compensation corresponding to USD 61,250, plus interest as of the due dates.
The Claimant also requested that the Respondent pay for the procedural and
legal costs.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
Page 2 of 8
6.
The Claimant based its claim on the total amount of USD 3,500,000, composed
by:
USD 2,700,000 as transfer compensation;
USD 200,000 as “Variable Transfer Price”, considering that the
Respondent allegedly was champion of the league of country D in the
season 2012/2013.
USD 600,000 as “Transfer Expenses”.
7.
Although invited to do so, the Respondent did not reply to the claim.
II. Considerations of the Dispute Resolution Chamber
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 1 July 2014. 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 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 2015), 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 (edition 2015) and, on the
other hand, to the fact that the present claim was lodged on 1 July 2014 and
that the player was registered with the Respondent on 14 August 2012. In view
of the aforementioned, the Chamber confirmed that the 2010 edition of the
Regulations on the Status and Transfer of Players (hereinafter: the Regulations)
is applicable to the matter at hand 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. 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.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
Page 3 of 8
5.
In this respect, the DRC noted that the Claimant claimed the payment of the
amount of USD 61,250 as solidarity contribution from the Respondent,
corresponding to 1,75% of the total transfer compensation, allegedly USD
3,500,000.
6.
In contiuation, 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 F and the Respondent agreed upon a transfer compensation of USD
2,700,000, payable as follows:
-
USD 400,000 “within twenty-four hours from the signature of this
agreement”;
USD 650,000 on 20 December 2012;
USD 1,000,000 on 20 June 2013;
USD 650,000 on 20 December 2013.
7.
Moreover, the Chamber took note that Club F and the Respondent also agreed
on the payment of USD 600,000 as “Transfer Expenses”, payable twenty-four
hours from the signature of the transfer agreement, and on a “Variable
Transfer Price” of USD 200,000, “which shall accrue at every opportunity Club
C’s Team is classified as champion of the league of country D limit, until the
end of 2015/2016 Football season”.
8.
Furthermore, the DRC noted that the Respondent never took position in the
specific matter relating to the claim of the Claimant, although having been
invited to do so by FIFA. Therefore, the members of the DRC deemed that, in
this way, the Respondent renounced to its right to defence.
9.
As a consequence of the aforementioned consideration, the Chamber
established that, in accordance with art. 9 par. 3 of the Procedural Rules, it
shall pass a decision upon the basis of the documents already on file i.e. upon
the statements and documents presented by the Claimant as well as upon the
information contained in the TMS.
10.
Having established the above, the DRC referred to art. 21 in combination with
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 and be distributed by the new club as a
solidarity contribution to the club(s) involved in the training and education of
the player between the seasons of his 12th and 23rd birthday.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
Page 4 of 8
11.
At this point, the members of the DRC deemed necessary to establish the
amount to be considered as transfer compensation for the calculation of the
solidarity contribution.
12.
In this respect, the members of the DRC reverted to the contents of the
transfer agreement contained in the TMS (cf. points II/6. and II/7. above) and
considered that the parties agreed on a transfer compensation in the amount
of USD 2,700,000, divided in 4 instalments. Moreover, the members of the DRC
took note that the Respondent also had to pay the amount of USD 600,000 to
Club F as “Transfer Expenses”, which clearly was due and is considered part of
the transfer compensation.
13.
On the other hand, the Chamber took note that Club F and the Respondent
agreed on a “Variable Transfer Price” of USD 200,000. However, the members
of the DRC highlighted that such amount was due in case the Respondent was
“classified as champion of the league of country D limit, until the end of
2015/2016 Football season”.
14.
In this regard, the members of the DRC considered that the “Variable Transfer
Price” is a conditional payment that is only due in case the Respondent
becomes champion of the league of country D until the end of the season of
2015/2016.
15.
In this respect, the DRC referred to the legal principle of the burden of proof
(cf. art. 12 par. 3 of the Procedural Rules), according to which every party
claiming a right on the basis of an alleged fact carries the burden of proof, and
took note that the Claimant failed to provide any document in support of its
claim regarding the “Variable Transfer Price”. As a consequence, the DRC
decided that the “Variable Transfer Price” cannot be taken into account as
part of the transfer compensation due and thus, the amount to be considered
as the total transfer compensation in the present matter is USD 3,300,000 (USD
2,700,000 + USD 600,000).
16.
In continuation, the DRC recalled that the Football Association of country B
had confirmed that the player, born on 11 October 1987, was registered with
the Claimant as from 15 March 2001 until 21 June 2004, as amateur, and as
from 22 June 2004 until 3 August 2005, as a professional.
17.
At this point, the DRC wished to emphasise that taking into consideration the
date of birth of the player, the changes in the starting and ending dates of the
sporting season in country B as well as the fact that the player turned
professional on 22 June 2004, the season of the player’s 17 th birthday i.e. the
season 2004/2005, ran from 1 January 2004 to 30 June 2005 covering a period
of 18 months.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
Page 5 of 8
18.
On account of the above and in accordance with art. 1 of Annexe 5 of the
Regulations, the DRC considered that the Claimant is, thus, entitled to receive
solidarity contribution for the above-mentioned period of time, i.e. for 10
months of the season of the player’s 14th birthday, for the full season of his
15th, 16th and 17th birthday as well as 1 month of the season of the player’s 18 th
birthday. In terms of the percentage of the 5% solidarity contribution, the
Chamber calculated that, on a pro rata basis, this corresponds to 29,99% of
5%.
19.
In view of all of the above, the DRC decided to partially accept the claim of the
Claimant and held that the Respondent is liable to pay the amount of USD
49,483.50 to the Claimant as solidarity contribution for the transfer of the
player from Club F to the Respondent.
20.
In light of the above and considering that the Claimant requests 5% interest
p.a. as of the due dates, the Chamber underlined that in case of contingent
payments, the new club shall pay the solidarity contribution to the training
clubs no later than 30 days after the date of such payments (cf. art. 2 par. 2 of
the Annex 5 of the Regulations). As a result, the Respondent should have paid
to the Claimant 29,99% of 5% of each installment no later than 30 days after
the date as from which each installment became due.
21.
In view of all of the above, the Chamber decided that the Respondent has to
pay to the Claimant the amount of USD 49,483.50 plus 5% interest p.a. on
each instalment as follows: 5% p.a. on the amount of USD 14,995 as from 14
September 2012, 5% p.a. on the amount of USD 9,746.75 as from 20 January
2013; 5% p.a. on the amount of USD 14,995 as from 21 July 2013 and 5% p.a.
on the amount of USD 9,746.75 as from 20 January 2014, applicable until the
date of effective payment.
22.
Lastly, the Chamber 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 relating to training compensation and solidarity
mechanism, costs in the maximum amount of CHF 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 that, in accordance with
Annex A of the Procedural Rules, the costs of the proceedings are to be levied
on the basis of the amount in dispute.
23.
In respect of the above, the Chamber held that the amount to be taken into
consideration in the present proceedings is USD 61,250 related to the claim of
the Claimant. Consequently, the Chamber concluded that the maximum
amount of costs of the proceedings corresponds to CHF 10,000 (cf. table in
Annex A).
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
Page 6 of 8
24.
As a result, and taking into account that the claim of the Claimant has been
partially accepted and that the Respondent did not reply to the Claimant’s
claim, the Chamber concluded that both the Claimant as well as the
Respondent have to bear a part of the costs of the current proceedings in front
of FIFA.
25.
Considering the above, the Chamber determined the costs of the current
proceedings to the amount of CHF 10,000, CHF 2,000 of which shall be borne
by the Claimant and CHF 8,000 of which shall be borne by the Respondent.
III.
Decision of the Dispute Resolution Chamber
1.
The claim of the Claimant, Club A, is partially accepted.
2.
The Respondent, Club C, has to pay to the Claimant, within 30 days of the
date of notification of this decision, the amount of USD 49,483.50 plus 5%
interest p.a. until the date of effective payment as follows:
a)
b)
c)
d)
5% p.a. on the amount of USD 14,995 as from 14 September 2012;
5% p.a. on the amount of USD 9,746.75 as from 20 January 2013;
5% p.a. on the amount of USD 14,995 as from 21 July 2013;
5% p.a. on the amount of USD 9,746.75 as from 20 January 2014.
3.
In the event that the aforementioned sum 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 claim lodged by the Claimant is rejected.
5.
The final costs of the proceedings in the amount of CHF 10,000 are to be paid,
within 30 days of notification of the present decision, as follows:
5.1 The amount of CHF 8,000 by the Respondent to FIFA to the following
bank account with reference to case no. XXXX:
UBS Zurich
Account number 366.677.01U (FIFA Players’ Status)
Clearing number 230
IBAN: CH 27 0023 0230 3666 7701U
SWIFT: UBSWCHZH80A
5.2 The amount of CHF 2,000 by the Claimant to FIFA. Given that the
Claimant has already paid the amount of CHF 2,000 as advance of costs
at the start of the present proceedings, the Claimant does not have to
pay an additional amount as costs of the proceedings.
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
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6.
The Claimant is directed to inform the Respondent 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:
Marco Villiger
Deputy Secretary General
Encl. CAS directives
Solidarity contribution in connection with the Player E
(Club A, country B / Club C, country D)
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